Volume III, August 2012 Newsletter .

Kathleen Madigan to Deliver Comedy Keynote Kathleen Madigan has been delivering stand-up comedy for twenty- two years. She has appeared on "The Tonight Show with Jay Leno," "The Late Show with David Letterman," "Late Night with Conan O'Brien" and multiple other late night shows. Ms. Madigan has appeared on HBO, Comedy Central, and a host of other television channels, and has toured the country and the world delivering her unique brand of humor and insight. She has toured with the USO in Iraq and Afghanistan, and is “a constant” on satellite radio. According to her website, www.kathleenmadigan.com, she remains the only comedian in the history of NBC's "Last Comic Standing" to go unchallenged by any other comedian--meaning no other comedian would say they were funnier than her. Madigan was a finalist in season 2 of "Last Comic Standing" and a judge on season 5. "It was fun to judge it once, but never again. I just can't think of 2000 ways to tell someone they're not funny without turning into a full blown alcoholic. Ms. Madigan was born in St. Louis and her father was an attorney. She was the “middle” child with three older brothers, one younger brother and two younger sisters. She graduated from Southern Illinois University with a degree in journalism. In interviews, she conceded that she never wanted to be a journalist. Ms. Madigan has credited her father, Jack Madigan, with encouraging her to try an open-mike comedy club opportunity. Some of her most poignant observations are about her family. Her father was an attorney and later a judge. Ms. Madigan delivers a no-nonsense, sometimes cynical, perspective on the world in which we live. From her views on hope and change to her perspectives on the dedication of Olympic athletes, she brings an interesting and insightful perspective to the fore. Asked by her sister if she had any hope left, she replied “"Let me check... um... Nope! I gave up hope officially when they took the pillows out of coach on American Airlines. If we can't afford a $0.05 piece of foam, we suck." Come see Ms. Madigan and more at the 67th Annual Workers’ Compensation Educational Conference, August 20, 2012 (details at WCI360.com).

“The Center for Excellence – The Study of Medical Cost Drivers in Workers’ Compensation” An Effort at Relevancy By Jim McConnaughhay, General Chairman WCI

The Annual Conference continuously is looking for “relevancy” in its breakout presentations, willing to change direction as new issues evolve in the workers’ compensation industry. What could be more relevant, perhaps better labeled as critical, than the study of the medical costs within the system. The newly created Center for Excellence – The Study of Medical Cost Drivers in Workers’ Compensation (Center) was designed for such purposes. The original idea for the Center was that of conference planning committee member Dr. Michael Webb, Regional Medical Director for Liberty Mutual Insurance Group. The idea was an “easy sell” to his boss Dr. David Deitz, Vice President, National Medical Director, Liberty Mutual Insurance Company, who is in a position of national oversight of concerns over medical costs. Liberty Mutual is one of the largest if not the largest workers’ compensation insurance carriers in the nation. An even easier sell was completed when Joe Paduda, Health Strategy Associates LLC, Madison, Jim McConnaughhay Connecticut, was approached to help oversee the creation of the program, the plan being to bring together some of the most influential persons in the nation to continue a dialogue of this most important aspect of workers’ compensation. Joe is recognized as a national expert on these issues, having developed a reputation of knowing the true pulse of developing issues. Dr. Webb, Dr. Deitz, and Mr. Paduda have done a masterful job accomplishing the goals of the Center for this, the first year of its existence. The Center’s breakout this year starts with a look at the real quality of medical care provided in the workers’ compensation system. This “quality study” begins with an analysis by Dr. David Deitz as to the “state of the nation” of medical costs and most importantly the quality of medical care for injured workers. It is the intent that the analytics of quality medical care within the workers’ compensation system will be a continuing subject of discussion and Joe Paduda debate as the Center continues in existence, a subject that must be continually debated by all stakeholders. Following a presentation on the quality of medical care, this year’s conference deals with several concerns beginning with the failure of all stakeholders to really understand the concerns of others. In many instances, there is a total disconnect between the meaning of workers’ compensation terms when interpreted by the different players including adjusters, injured workers, providers, regulators, and adjudicators. From that point, the program moves to some practical issues as in the use of clinical guidelines in determining the most effective manner of providing care to the injured worker, the types of medical care providing the most benefits and the providers that should be a part of the provider system/network. This ends the first day of the Center’s inaugural breakout. The second day moves from a general study of medical issues to a study or debate on specific treatment modalities. This year’s focus is on costs associated with chronic pain management and the ever increasing costs associated with pharmaceuticals. The program ends with a presentation by Dr. 2 David Victor of the Workers’ Compensation Research Institute, Cambridge, Massachusetts, who will present the results of a national study on medical costs in the workers’ compensation system. At the forefront of today’s American political scene is the oftentimes tumultuous debate over health care costs in America. Perhaps the most divisive component of such discussions is the mandatory nature of The Patient Protection and Affordable Care Act (Obamacare) requiring all employers to provide health insurance to their employees. For 100 years since workers’ compensation was brought to this country, American employers have been required to provide medical coverage to their employees for work related injuries. We, in the workers’ compensation industry, have been dealing with mandatory medical coverage for years, attempting to deal with costs/quality medical care – some of our solutions have worked and others have resulted in complete failure. Perhaps all David Deitz Americans can learn from the workers’ compensation experience. The conference encourages all who are interested in the medical costs in the workers’ compensation system to participate in the Center’s series of breakouts. The Center is designed to encourage everyone in the workers’ compensation system to participate in the breakouts, regardless of whether their interests follow those of the employer/carrier industry or are more appropriately aligned with the injured worker. For a more detailed overview of the Center’s breakouts, and other offerings at this year’s conference, please refer to the website at www.wci360.com

WCI Workers’ Compensation Educational Conference 2011

Regulator Roundtable, WCEC 2011 3 An EEOC “Game Changer” for Employers?

The Equal Employment Opportunity Commission issued an “Enforcement Guidance” on April 25, 2012, with advice regarding the consideration of arrest and conviction records in the hiring process. The Guidance has resulted in comments and blogs on the internet as advocates for both business and individuals contemplate the effect that this Guidance may affect. The following is the Introduction (Section I.), Background (Section II.), and the Employer Best Practices (Section VIII.) of the Guidance. The complete Guidance (including the endnotes is available on the EEOC website: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#I

II. Introduction The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin.1 This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.2 In the last twenty years, there has been a significant increase in the number of Americans who have had contact3 with the criminal justice system4 and, concomitantly, a major increase in the number of people with criminal records in the working-age population.5 In 1991, only 1.8% of the adult population had served time in prison.6 After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).7 By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.8 The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.9 Arrest and incarceration rates are particularly high for African American and Hispanic men.10 African Americans and Hispanics11 are arrested at a rate that is 2 to 3 times their proportion of the general population.12 Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime;13 by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.14 The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment.15 This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over Picture Your Ad Here! For more information on advertising in the WCI News, Contact Cathy Bowman, 850.425.8156 or [email protected]; formats include:

Quarter Page Banner - 7.5" (w) x 2.5" (h)(this example); Vertical Quarter Page 2" (w) x 9.75" (h); Corner Square - 3.75" (w) x 4.75" (h); Half Page Banner 7.5" (w) x 4.75" (h); and Vertical Half Page - 3.75" (w) x 9.75" (h) See: Babeltower Page 5, CVI page 17, MTI page 30, NeuroRestorative P. 23, and NuQuest, Page 11! 4 twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments,16 the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue. The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.

III. Background The contextual framework for the Title VII analysis in this Enforcement Guidance includes how criminal record information is collected and recorded, why employers use criminal records, and the EEOC’s interest in such criminal record screening.

A. Criminal History Records Criminal history information can be obtained from a wide variety of sources including, but not limited to, the following: Court Records. Courthouses maintain records relating to criminal charges and convictions, including arraignments, trials, pleas, and other dispositions.17 Searching county courthouse records typically provides the most complete criminal history.18 Many county courthouse records must be retrieved on- site,19 but some courthouses offer their records online.20 Information about federal crimes such as interstate drug trafficking, financial fraud, bank robbery, and crimes against the government may be found online in federal court records by searching the federal courts’ Public Access to Court Electronic Records or Case Management/Electronic Case Files.21 Law Enforcement and Corrections Agency Records. Law enforcement agencies such as state police agencies and corrections agencies may allow the public to access their records, including records of complaints, investigations, arrests, indictments, and periods of incarceration, probation, and parole.22 Each agency may differ with respect to how and where the records may be searched, and whether they are indexed.23 Registries or Watch Lists. Some government entities maintain publicly available lists of individuals who have been convicted of, or are suspected of having committed, a certain type of crime. Examples of such lists include state and federal sex offender registries and lists of individuals with outstanding warrants.24 State Criminal Record Repositories. Most states maintain their own centralized repositories of criminal records, which include records that are submitted by most or all of their criminal justice agencies, including their county courthouses.25 States differ with respect to the types of records included in the

5 repository,26 the completeness of the records,27 the frequency with which they are updated,28 and whether they permit the public to search the records by name, by fingerprint, or both.29 Some states Monday permit employers (or third-parties acting on their behalf) to access these records, often for a fee.30 WCEC 2012 Others limit access to certain types of records,31 and still others deny access altogether.32 (Click a session to access details)

The Interstate Identification Index (III). The Federal General Sessions Bureau of Investigation (FBI) maintains the most comprehensive collection of criminal records in the Exhibit Hall Open nation, called the “Interstate Identification Index” Grand Prize Drawing Inside Exhibit (III). The III database compiles records from each of Hall the state repositories, as well as records from federal 33 and international criminal justice agencies. E. Earle Zehmer National Moot Court The FBI’s III database may be accessed for employment purposes by: Finals • the federal government;34 • employers in certain industries that are regulated by Case Law Update the federal government, such as “the banking, nursing home, securities, nuclear energy, and private Breakout for Risk Managers security guard industries; as well as required security screenings by federal agencies of airport workers, Breakout on Employment Law HAZMAT truck drivers and other transportation workers”;35 and Medical Breakout Session • employers in certain industries “that the state has sought to regulate, such as persons employed as civil National Trends in Workers’ servants, day care, school, or nursing home workers, Compensation taxi drivers, private security guards, or members of regulated professions.”36 National Workers’ Compensation Recent studies have found that a significant number of state and federal criminal record databases include Review incomplete criminal records. A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal history record National Institute of Occupational repositories still had not recorded the final dispositions for a Safety and Health (NIOSH) ERC 37 significant number of arrests. A 2006 study by the Regional Seminar DOJ/BJS found that only 50% of arrest records in the FBI’s 38 III database were associated with a final disposition. Cutting Edge Occupational Health Additionally, reports have documented that criminal records may be inaccurate. One report found that even if Issues: NIOSH and Beyond public access to criminal records has been restricted by a court order to seal and/or expunge such records, this does not National Workers’ guarantee that private companies also will purge the Compensation Judiciary College information from their systems or that the event will be erased from media archives.39 Another report found that OSHA 10-Hour Course criminal background checks may produce inaccurate results because criminal records may lack “unique” information or Breakout on Workplace Safety, because of “misspellings, clerical errors or intentionally Program One inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal Reception and Entertainment activities.”40 6 Employers performing background checks to screen applicants or employees may attempt to search these governmental sources themselves or conduct a simple Internet search, but they often rely on third-party background screening businesses.41 Businesses that sell criminal history information to employers are “consumer reporting agencies” (CRAs)42 if they provide the information in “consumer reports”43 under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result in entry of a judgment of conviction, where the arrests occurred more than seven years ago.44 However, they may report convictions indefinitely.45 CRAs often maintain their own proprietary databases that compile information from various sources, such as those described above, depending on the extent to which the business has purchased or otherwise obtained access to data.46 Such databases vary with respect to the geographic area covered, the type of information included (e.g., information about arrests, convictions, prison terms, or specialized information for a subset of employers such as information about workplace theft or shoplifting cases for retail employers47), the sources of information used (e.g., county databases, law enforcement agency records, sex offender registries), and the frequency with which they are updated. They also may be missing certain types of disposition information, such as updated convictions, sealing or expungement orders, or orders for entry into a diversion program.48

B. Employers’ Use of Criminal History Information In one survey, a total of 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks.49 Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud,50 as well as heightened concerns about workplace violence51 and potential liability for negligent hiring.52 Employers also cite federal laws as well as state and local laws53 as reasons for using criminal background checks.

C. The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is discussed in Section V.

VIII. Employer Best Practices The following are examples of best practices for employers who are considering criminal record information when making employment decisions.

General Eliminate policies or practices that exclude people from employment based on any criminal record. Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

7

Developing a Policy Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. Identify essential job requirements and the actual circumstances under which the jobs are performed. Determine the specific offenses that may demonstrate unfitness for performing such jobs. . Identify the criminal offenses based on all available evidence. Determine the duration of exclusions for criminal conduct based on all available evidence. . Include an individualized assessment. Record the justification for the policy and procedures. Note and keep a record of consultations and research considered in crafting the policy and procedures. Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII. Questions about Criminal Records When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. Confidentiality Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

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 67th annual workers’ compensation education conference (WCEC). The Marriott World Center is offering a special rate of $99 for both Friday (08/17) and Saturday (08/18) to facilitate participation in this program. Additional information is available at: http://www.wci360.com/conference/kids-world. 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. Pre-registration is required; you merely need to complete the form http://www.wci360.com/files/uploads/GKTWForm.pdf. 8 WCI Hall of Fame Inducts

Steve Rissman, Esquire

Steve Rissman has spent his entire career in the specialty of workers’ compensation. He graduated from Florida State University College of Law in March 1972. Shortly thereafter, he became employed by the Industrial Relations Commission, the Workers’ Compensation Appellate Court at that time. He worked for the Industrial Relations Commission from 1972 – 1974 as the law clerk, legislative liaison and administrative assistant to the chairman of the Industrial Relations Commission. During his tenure, he worked for two of the real giants in professionalizing the practice of workers’ compensation – Steve Slepin and Leonard Carson. In March 1974, Steve joined the workers’ compensation defense firm of Earle, Yanchuck & Cooper as a young associate. That firm, over the years and after many changes, became Rissman, Barrett, Hurt, Donahue & McLain. During that entire time, Steve practiced workers’ compensation insurance defense, representing employers and insurance companies. Steve has received many professional accolades over the years. He was Chairman of the Workers’ Compensation Section of the Florida Bar in 1982-1983, he was the recipients of the prestigious W.L. “Bud” Adams award in 1985, an award which was created “to recognize those who had performed outstanding and selfless service in advancing the philosophy and practice of the workers’ compensation system” and he has been an adjunct professor for his alma matter, Florida State University College of Law, teaching a workers’ compensation course in the 1990s. More recently, Steve has been recognized in Best Lawyers in America since 1995, Florida Super Lawyers since 2006 and was recently named to the College of Workers’ Compensation Lawyers, a prestigious national recognition. Most recently he was elected as president and charter member of the Workers’ Compensation Hall of Fame – one of only 17 lawyers, judges and industry individuals to receive that honor. Professionally, Steve considers his biggest two achievements as the building of his defense firm and the expansion of the Workers’ Compensation Educational Conference. The firm grew from a small workers’ compensation specialty firm into one of the most experienced defense firms in Florida. The firm is headquartered in Orlando, with offices in Tampa and Sebastian, and concentrates its practice on insurance defense and workers’ compensation defense. The firm’s 65 trial lawyers handle legal disputes ranging from small to multi-million dollar cases. The firm was recently selected as one of only 18 firms in Orlando and 193 firms in the entire state (out of over 22,000) to be recognized in “Florida’s Top Ranked Law Firms” by the Wall Street Journal in conjunction with Lexis Nexis/Martindale-Hubbell. Steve’s other major professional accomplishment has been with respect to the Workers’ Compensation Educational Conference. Originally, the conference was state run and quite small. In the mid-1980s, organization of the conference was taken over by Jim McConnaughhay, David Parrish, Gerry Rosenthal and Steve. The program went from a three or four page tri-fold program to today, when the conference is recognized as the premier workers’ compensation conference in the United States. The program is now over 100 substantive pages and has different breakouts for adjusters, lawyers, doctors, nurses, safety personnel, risk managers, personnel people and all of those interested in where workers’ compensation is going in Florida, the Southeast and the United States. In his personal life, Steve has been married for over 31 years to Donna Bergh Rissman. Steve and Donna have two children, Elizabeth 27 and David 23. 9 25th Annual Earle E. Zehmer Moot Court Competition! An exceptionally talented and dedicated group of volunteers works each year to bring the Earle Zehmer Moot Court Competition to life. At the Peabody hotel, longer ago than the participants wish to remember, there was an FWCI breakout on effective oral argument in workers’ compensation cases. This program drew a packed house, and rave reviews. From that foundation, the conference leadership decided that a moot court completion among law students, focused upon a fictional workers’ compensation dispute would enhance the program. This year, attorneys Tracey Hyde, Jacqueline Blanton Steele, Richard Sicking, Barbara Wagner, and Mark Zientz have continued their long-term leadership of this program. This team has prepared the fictional problem that the law students will address, recruited teams from across the Southeast to participate, recruited and organized workers’ compensation judges from eight jurisdictions to judge the preliminary rounds, and arranged for the final round to be judged by members of the Florida First District Court of Appeal. The Judges in the preliminary rounds will be from the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Pennsylvania, South Carolina, and Virginia. The depth of their dedication and effort are difficult to effectively describe, but they are entirely responsible for the success of this program, which proudly enters its 25th year in 2012. Mark Zientz, Esq. Earle E. Zehmer, a First District Court of Appeal Judge, was an avid supporter of the idea, That court has been responsible for hearing appeals of Florida workers’ compensation cases for many years. Unfortunately, Judge Zehmer passed away in May 1996 at the age of 64. The Moot Court Competition was re-named in his honor. Prior to arriving in Orlando, all fourteen teams submitted written appellate briefs on the issues. The briefs are graded by a panel of three judges whose scores are averaged together for a final written brief score. The written brief score is then combined with the scores from each of the two preliminary rounds to determine the four teams with the highest overall scores. Those four teams advance to a semi- final round that is also held on August 21st at the Orlando Marriott World Center at approximately 4:30 p.m. in Crystal Ballrooms A and B. The semi-final round is a single elimination round where the panel of three Judges of Compensation Claims decide, based solely on Barbara Wagner, Esq. oral advocacy skills, which two teams advance to the final round. The fictional problem this year centers on “Amelia West,” whose spouse died on July 14, 2011. The circumstances of the problem involve the legalities of an unwitnessed accident. The problem describes that Mr. West was a long-term employee of a construction company, which was working on a 34 story building in Miami. On the date of accident, Mr. West was assigned to work on the 17th story, installing some guard railings. There was significant wind on that day, gusting to 45 miles per hour. Despite this significant wind, Mr. West was installing these Tracey Hyde, Esq. guardrails, and had completed all but about one-half of the west side of the building by lunchtime. According to the supervisor who testified at trial, Mr. West was sitting on the west side of the 17th floor eating lunch with a Mr. McGreavy. The supervisor, Mr. Gordon, testified at trial that he witnessed an argument between West and McGreavy. He asked them to stop and learned that the argument had to do with a $20.00 bet on a Marlin’s game. Mr. Gordon instructed them to settle the issue on their own time and to “get back to work.” 10 Mr. West was later found on the ground, dead, and Mr. McGreavy has not been “heard of or seen since.” The medical evidence in the case indicates that Mr. West suffered from low blood pressure and this occasionally resulted in fainting spells, if Mr. West arose suddenly from a sitting position. Although the physician diagnosed this condition as orthostatic hypotension, he admitted that the tests for all known causes of this condition were negative. The case is further complicated by limitations on the admission of expert testimony, and the implications this could have upon the admissibility of the autopsy results. The problem concludes telling us that Judge of Compensation Claims Chayne entered a final order finding that West's death was compensable when he fell 17 stories to his death while at work; and he further found that the reason why West fell is undetermined, but irrelevant. The Judge wrote: "Mr. West could tell us why he fell, but he can't." Death benefits were awarded. The employer/carrier has appealed to the First District Court of Appeal, arguing two points:

Point one: The JCC erred in finding west's fall to his death at work to be compensable when the cause for his fall was undetermined.

Point two The JCC erred in making the following evidentiary rulings: A. Dr. Loveless' testimony was admissible; B. The me's investigator's report was admissible; and C. Dr. Messenger's testimony was not admissible. This will be the foundation upon which sixteen teams of two law students each will portray their skills at appellate attorneys. The program begins on Sunday, August 19, 2012 at 2:00 p.m. in the Crystal Ballrooms A and B as well as the Grand Ballrooms 9-14. Two finalist teams will be selected to participate in the final round before the First District Court of Appeal on Monday, August 20, 2012 at 1:30 in the Crystal Ballroom M. The final round will be heard by Judge Joseph Lewis, Jr., Judge Stephanie Ray, and Judge Ronal Swanson. The final round is also a single elimination Jacqueline Blanton Steele, round wherein the Judges determine the Esq. team that demonstrated the best oral advocacy skills. The First District Court of Appeals announces the winning team and provides constructive critiques aimed at allowing the students to sharpen their oral advocacy skills. The remaining competition awards are also presented at the conclusion of the final round on Monday.

Are you on LinkedIn?

Groups to Join:

Workers Compensation Institute

Florida Office of Judges of Compensation Claims 11

Announcing the 2nd Annual National Regulators Roundtable

Presented by the Southern Association of Workers’ Compensation Administrators (SAWCA)

We are pleased to offer the 2nd Annual National Regulators Roundtable sponsored by SAWCA, designed to bring together regulators from throughout the country to discuss challenges, concerns, and issues facing individual jurisdictions in the oversight of the ever changing workers’ compensation industry. The Roundtable will be held at 2:00-5:00 on Tuesday, August 21, 2012 at the WCI Workers’ Compensation Educational Conference, Marriott World Center, Orlando, Florida. Problems faced by one jurisdiction may have already been successfully addressed by another; a developing issue or concern in one state may be an omen for future developments in your state; and legislative issues know no boundaries. The National Regulators Roundtable is a forum where regulators share lessons learned and seek timely answers to their most pressing issues. Dwight T. Lovan, President of SAWCA and the Commissioner of the Kentucky Department of Workers’ Claims will moderate the 2012 roundtable. Topics to be discussed include: Any & All Things Medical; Employer Compliance; Adjudication of Benefits; Managing the Legislative Environment; Facing Tough Economic Times; Advancing Technology and ending with the “Lightening Round” providing the audience an opportunity to question the Regulators.

The 67th Annual WCEC Adds a New Feature “Ask the Regulators”

This Opportunity is a Joint Effort of WCI and SAWCA Make an Appointment Today to Meet Individually with a Regulator

Visit www.WCI360.com Click on the Annual Conference tab Select “Ask the Regulators” for Details 12

Attorney Breakout 2012!

The attorney breakout returns in 2012 with an intellectual and diverse group of speakers. The program will begin Tuesday morning with the always popular “hot topics” Strategy Session moderated by Stuart Suskin. This year’s panel includes William Rogner, Steven Kronenberg, Michael Winer, and Richard Berman. With the constantly changing workers’ compensation law, creative practitioners are always pushing the limits of the law based on recent decisions. The development of both substantive and procedural law has continued in 2011 and 2012, yielding much to be discussed since WCEC 2011. This experienced and highly respected panel of attorneys will share thoughts and strategies related to the current state of the law. With a careful balance between defense and claimant strategies, the discussion will be sure to be both heated and Attorney Dawn Traverso informative. Topics will include: permanent total disability given the current economy and high unemployment, the state of the MSA dilemma, potential constitutional implications of current state of the law, and the loss of immunity on denied cases. Of course, topics will also change to include recent decisions of the Courts. Practitioners will value the return this program provides for the investment of time. The panelists will provide their unique perspective, gleaned from their own litigation of these issues. The second program on the agenda is what promises to be a lively debate of whether Workers’ Compensation has become an “unreasonable” alternative to tort litigation. This discussion will be moderated by the venerated Christopher Smith of Tampa, and the panel includes Dawn Traverso, Mark Zientz, Kelli Hastings, and Allison Hauser. The panel will discuss their doubts of the continued constitutional Attorney Christopher Smith viability of Chapter 440. This discussion will include references to, and perspectives about, recent court decisions involving various aspects of the Florida Workers’ Compensation statute. Understanding the direction this practice is taking is critical to the management of a workers’ compensation law practice generally, and to success The workers’ compensation practice from the judicial perspective will follow lunch at 2:15. This will feature Judge Stephen Rosen moderating a discussion between Judge Gerardo Castiello (MIA), Judge Neal Pitts (ORL), and Judge Laura Roesch (PMC). The panel represents perspectives from diverse geographic areas and promises to provide a distinctive variety of thoughts and advice. This distinguished panel of sitting judges will discuss issues of effective advocacy and professionalism in an increasingly competitive environment. The discussion will incorporate some of the most contentious issues facing practitioners today including: the fraud

defense, attorneys’ fees, bad faith denials and weighing Attorney Allison Hauser evidence, procedural failures, sanctions and more. Finally, Paul Kelley will moderate a panel focused on the subjects of ethics and professionalism. Panelists Sean O’Conner, Joanne Prescott, and Steven Pyle will provide “real world” examples of dilemmas and conflicts. The focus of this discussion will include the potential for discipline by The Florida Bar, but also on the boarder concept of professional practice generally. This breakout promises attendees solid “take-aways” that will enhance their practice and professionalism. Attorney Steven Kronenberg 13 WCI Hall of Fame Inducts James McConnaughhay

Jim McConnaughhay concentrates his practice in workers’ compensation and administrative law. A Florida Board Certified workers’ compensation lawyer, Jim has actively practiced since his admission to the Florida Bar in 1969. His clients include national insurers as well as employers of every size. His administrative law experience primarily deals with the Florida Division of Workers’ Compensation and the Office of Insurance Regulation including but not limited to issues relating to rule promulgation, excess profits determinations, and insurance company regulatory activities. Jim has been the General Chair of the Florida Workers’ Compensation Institute, and the Workers’ Compensation Educational Conference for 25 years. He has authored “Defending Workers’ Compensation Cases” for the Florida Bar Continuing Legal Education Handbook and the annually updated Florida Workers’ Compensation Desk Manual. He was the author of the 1989 Governor’s Task Force Report on Workers’ Compensation and the 1990 Oversight Board Report. Jim served as consultant for the 2003 systemic changes in the Florida Workers’ Compensation Law. He has been an Adjunct

Professor of Workers’ Compensation Law for the Florida State University College of Law. He is a fellow of the College of Workers’ Compensation Lawyers and was inducted to the Workers’ Compensation Hall of Fame created by the Workers’ Compensation Institute. Jim’s leadership and commitment are illustrated by this list of responsibilities. Chairman, Florida Workers’ Compensation Institute, Inc. Chairman, National Annual Education Conference in Workers’ Compensation Chairman, Florida Safety and Health Institute Chairman, Safety and Health Conference Chairman, Advisory Board of the National Association of Workers’ Compensation Judiciary Chairman, National Workers’ Compensation Institute Member, Tallahassee Bar Association Member, “The Best Lawyers in America” and “SuperLawyers” Member, Editorial Board of The Florida Underwriter Fellow, College of Workers’ Compensation Lawyers Past Chairman, Grievance Committee of the Second Judicial Circuit Past Chairman, Florida Bar Executive Council on Workers’ Compensation Past Member, Governor’s Task Force on Compensation Past Member, Defense Research Institute (DRI) Past Member, State Advisory Board for the Special Disability Trust Fund and Florida Workers’ Compensation Insurance Plan (Assigned Risk Pool) Past Member, Workers’ Compensation Certification Committee (Florida Bar) Past Member, Judicial Nominating Commission (Florida Workers’ Compensation) Past Member, Editorial Board of the Workers’ Compensation Reporter

14 Court Rules That the MSP’s “Private Cause of Action” Extends to Medicare Advantage Organizations By: Mark Popolizio, Esquire

In the case of In re Avandia Marketing, Sales and Products Liability, No. 11- 2664, 2012 WL 2433508 (3rd Cir. June 28, 2012) the court ruled that the private cause of action provision under the Medicare Secondary Payer (MSP) statute (which allows for “double damages” against primary payers) extends to Medicare Advantage Organizations (MAOs). In this case, the United States Court of Appeals (Third Circuit) reversed the district court’s ruling1 and found, in main part, that the “plain text” of the MSP’s “private cause of action” statute applies to MAOs thereby giving such plans private cause of action rights to assert claims for “double damages” against primary payers thereunder. In this article, the author dissects the court’s detailed decision in the Avandia case. This is followed by a “Practical Considerations” section outlining various factors for evaluating this decision and dealing with Medicare Advantage plans as part of claims practice. Medicare Advantage (MA) Plans - Brief Background In order to properly assess the court’s decision in Avandia having a base understanding of how “The Avandia case brings to the and where MA plans fit into the bigger picture of the Medicare forefront important questions program may be helpful. While a complete examination of the concerning Medicare Advantage makeup of the Medicare program is outside the scope of this (MA) plans, in terms of the nature article, the following brief (and very general) overview is and extent of the rights afforded provided: The Medicare program is comprised of four parts: Parts A, B, MA plans, as well as the C, and D. Parts A and B are referred to as “original” or compliance obligations primary “traditional” Medicare which was enacted into law in 1965. The payers (and others) have, or may benefits under original or traditional Medicare are provided have, in relation to such plans.” through the federal government. In 1997, Part C was added to the Medicare program and was initially known as “Medicare+Choice.” This name was eventually changed to “Medicare Advantage (MA).” Under Part C, beneficiaries receive Medicare benefits from private insurers (and not the federal government) through a variety of different options, including private fee for service plans (PFFs), HMOs, PPOs, and other arrangements.2 Part D was enacted in 2006 and provides a limited outpatient prescription drug benefit. As discussed by the court in Avandia, the Medicare Act contains certain secondary payer provisions related specifically to Medicare Advantage Organizations (MAOs) and Medicare Advantage HMOs as part of Part C.3 The MA plan at issue in the Avandia case was a MAO. In Avandia, the court was called upon to determine the extent of a MAO’s secondary payer rights, most specifically, whether the private cause of action provision contained under the MSP extended to MAO plans. 15 With this backdrop, we can now dissect the Avandia decision as follows: Facts This case involved a class action suit filed against Tuesday GlaxoSmithKline, L.L.C. and PLC (“Glaxo”) for alleged injuries resulting from the use of the diabetes medication WCEC 2012 Avandia. The dispute in this case arose in relation to the settlement of this action. (Click a session to access details)

In regard thereto, the MAO plan, Humana, filed suit Registration and Information against Glaxo seeking reimbursement of medical expense it allegedly provided its enrollees in relation to this claim, Exhibit Hall Open and sought “double damages” against Glaxo under the Grand Prize Drawing Inside Exhibit Hall MSP’s private cause of action. Glaxo filed a motion to Breakout for Adjusters, Program One dismiss Humana’s action on grounds that Humana, as a MAO, did not have private cause of action rights. Breakout for Adjusters, Program Two The district court granted Glaxo’s motion to dismiss finding that the Medicare Act did not provide MAOs, such Breakout for Attorneys as Humana, with a private cause of action to seek the Medical Breakout Sessions claimed reimbursement. Humana then appealed to the United States Circuit Court (Third Circuit) which reversed Breakout for Risk Managers the district court’s ruling for the reasons discussed below. National Trends in Workers’ Compensation

Question Presented National Workers’ Compensation Review Does the private cause of action for double damages under the MSP Act (42 U.S.C. § 1395y(b)(3)(A)) provide Cutting Edge Occupational Health Issues: Humana, and other MAOs, with the right to bring suit NIOSH and Beyond against primary payers under that provision? NIOSH ERC Regional Seminar Court’s Ruling Breakout for Professional Employer Yes, the United States Court of Appeals (Third Circuit) held that 42 U.S.C. § 1395y(b)(3)(A) does in fact extend Organizations (PEO) to MAOs and provides such entities with a private cause of Breakout for Temporary Staffing action against primary payers. The court asserted the following five (5) bases in support First Responder Heart Claims: The Current of its ruling: State of Law & Medicine

1. The “plain text” of the MSP’s private cause of action National Workers’ Compensation Judiciary provision affords MAOs private cause of action rights. College The MSP’s private cause of action provision is codified at 42 U.S.C. § 1395y(b)(3)(A) and states as follows: Second Annual National Regulators There is established a private cause of action for Roundtable damages (which shall be in an amount double the amount otherwise provided) in the case of a primary The Center for Excellence - The Study of plan which fails to provide for primary payment (or Medical Cost Drivers In Workers’ appropriate reimbursement) in accordance with Compensation paragraphs (1) and (2)(A). The referenced paragraph (2)(A) was applicable to the OSHA 10-Hour Course 4 issue before the court. In relation to this paragraph, the Breakout on Workplace Safety, Prgm. One parties’ dispute centered on the phrase “payment under this subchapter” as contained therein.5 Breakout on Workplace Safety, Prgm. Two Glaxo argued that this phrase referred to payments made only under traditional Medicare and excluded payments 16 made by MA plans arguing that the payments in the latter instance are issued “pursuant to private contracts of insurance between the MAO and the participant.” Humana argued that this phrase properly referred to the Medicare Act as a whole and not just to Parts A and B under the traditional Medicare program. In support, Humana highlighted other instances in the Medicare Act where Congress purportedly (and intentionally) limited applicability to specific parts (e.g. Part A or Part B). The court agreed with Humana finding that: This language makes clear that ‘subchapter’ refers to the Medicare Act as a whole. Since the MSP Act and its private cause of action provision do not attach any narrowing language to ‘payments made under this subchapter,’ that phrase applies to payments made under Part C as well as those made under Parts A and B. Accordingly, that language cannot be read to exclude MAOs from the ambit of the private cause of action provision.6 In addition, Humana argued that the plain text of this provision placed no limitations on which private parties may bring suit thereunder. The court also agreed with Humana on this point finding that: [42 U.S.C. § 1395y(b)(3)(A)] establishes ‘a private cause of action for damages’ and places no additional limitations on which private parties may bring suit .. Accordingly, we find that the [private cause of action] provision is broad and unambiguous, placing no limitations upon which private (i.e., non-governmental) actors can bring suit for double damages when a primary plan fails to appropriately reimburse any secondary payer.7 (Emphasis Added). Further, the court noted that while the MSP Act was enacted before Part C was introduced in 1997, private Medicare risk plans had been in operation since 1972, prior to when the MSP Act was enacted in 1980. Accordingly, the court reasoned that at the time Congress enacted the MSP Act, “Congress was aware that private Medicare providers existed .. [h]ad it intended to prevent them from suing under the private cause of action provision, Congress could have done so explicitly.”8

2. Even if the language of the private cause of action provision is viewed as being ambiguous, application of 42 C.F.R. § 422.108 affords MAO plans private cause of action rights. (The court reached this conclusion by utilizing Chevron deference). Although the court found the text of 42 U.S.C. § 1395y(b)(3)(A) to be unambiguous, it clearly acknowledged that its conclusion may be “counterintuitive” to some given the general textual complexity of the Medicare Act, noting in particular that the Act was described by one court as among “the most completely impenetrable texts within human experience.”9 Notwithstanding, the court ruled that even if the text of 42 U.S.C. § 1395y(b)(3)(A) was viewed as being ambiguous, MAOs would still enjoy private cause of action rights through 42 C.F.R. § 422.108 by applying Chevron deference principles.10 Under Chevron, if a statute is unclear, silent or ambiguous, then the “question for the court is whether the agency’s answer is based on a permissible construction of the statute.”11 The court will defer to the agency’s regulations unless they are “arbitrary, capricious, or manifestly contrary to the statute.”12

17

From this analytical base, the court found that CMS has the authority to “promulgate rules and regulations interpreting and implementing Medicare related statutes.”13 Accordingly, the court concluded that it “must accord Chevron deference to regulations promulgated by CMS.”14 In doing so, the court focused on that part of 42 C.F.R. § 422.108(f) stating that an “MA organization will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.”15 Based on this provision, the court concluded that 42 C.F.R. § 422.108(f) extended private cause of action rights to MAO plans. The court stated: The plain language of [42 C.F.R. § 422.108(f)] suggests that the Medicare Act treats MAOs the same way it treats the Medicare Trust Fund for purposes of recovery from any primary payer. In this circumstance, we are bound to defer to the duly-promulgated regulation of CMS.16 In addition, the court referenced other factors as “lend[ing] further support to this understanding of the rule.” Most notably, the court referenced a December 5, 2011 memorandum regarding MAO plans issued by CMS in response to recent federal court decisions limiting MAOs recovery rights and remedies to state court actions.17 In pertinent part, this memo provides: CMS regulations at 42 CFR § 422.108 describes [sic] MSP procedures for MAOs to follow when billing for covered Medicare services for which Medicare is not the primary payer. These regulations also assign the right (and responsibility) to collect for these services to MAOs. Specifically, 422.108(f) stipulates that MAOs will exercise the same rights of recovery that the Secretary exercises under Original Medicare MSP regulations in subparts B through D of part 411 of 42 CFR and that the rules established in this section supersede any State laws … Notwithstanding these recent court decisions, CMS maintains that the existing MSP regulations are legally valid and an integral part of Medicare Part C and D programs.18 (Emphasis Added). From the court’s view, CMS’ memorandum “clarified that CMS itself understood § 422.108 to assign MAOs ‘the right (and responsibility) to collect’ from primary payers using the same procedures available to traditional Medicare.”19

3. The court found nothing in the legislative history or text of the MA secondary payer provisions evidencing Congressional intent to deny MAO plans access to the MSP’s private cause of action provision. Glaxo argued that the secondary payer provisions of the MAO statute (42 U.S.C. § 1395w-22(a)(4)) precluded the extension of private cause of action rights to MAO plans. 42 U.S.C. § 1395w-22(a)(4) states as follows: (4) Organization as secondary payer Notwithstanding any other provision of law, a [MAO] may (in the case of the provision of items and services to an individual under a [MAO] plan under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2)) of this title charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section--

18 (A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or Wednesday (B) such individual to the extent that the individual has been paid under such law, plan, or policy for such WCEC 2012 services.20 Glaxo advanced three arguments in relation to this statute (Click a session to access details) (all of which were rejected by the court) as follows: Registration and Information First, Glaxo argued that the plain text of the MAO Breakfast in the Exhibit Hall secondary payer provision “makes clear” that MAOs do not have a federal cause of action under the Medicare Act and, Exhibit Hall Open as such, the MSP’s private cause of action provision is Grand Prize Drawing Inside Exhibit Hall inapplicable to MAOs. In essence, Glaxo argued that a 2012 Medical Management Breakout MAO’s reimbursement rights were contractual in nature Florida Department of Financial Services subject to enforcement in state court. - Division of Workers’ Compensation However, the court observed that Humana was not Breakout contending that the MAO secondary payer provision provided it with private cause of action rights; but rather that Breakout on Medical Issues it was “hangin[ing] [its] hat entirely on the MSP Act provision.” Accordingly, the court noted that § 1395w– Breakout on Longshore and Harbor 22(a)(4) was “relevant only inasmuch as it assists us in Workers Act, Jones Act, and Defense interpreting the MSP private cause of action provision, and Base Act we are not persuaded that it undermines the meaning of the Breakout on Advanced Mediation plain text of that provision.”21 Techniques Second, Glaxo argued that reference to §1395y(b)(2) within the MAO secondary payer provision only applied to Breakout on Multi-State Workers’ the definition of a “primary payer” and did not incorporate Compensation Laws the entire MSP Act into the MA statutory scheme. The court also rejected these arguments stating: Medicare Secondary Payer Compliance & In order to find these arguments persuasive, we would Mandatory Reporting: Providing Clarity need to determine that, although private insurers in a Land of Confusion providing [Medicare] services could have brought suit The Center for Excellence - The Study of under the MSP private cause of action provision before the enactment of the MA secondary payer provision, Medical Cost Drivers In Workers’ once that text became law, the MSP private cause of Compensation action was closed to them. We will not reach this conclusion.22 Third, Glaxo argued that MAOs do not have private cause of action rights based on the fact that the MAO secondary payer provision is permissive in nature (i.e. an MAO “may” charge a primary payer) while the MSP uses mandatory language with respect to repayment obligations. In rejecting this argument, the court noted: Glaxo reads far too much into this distinction. No MAO, acting rationally, would decline to position itself as a secondary payer in order to charge primary payers where appropriate. Accordingly, the fact that Congress employs permissive language when establishing rules for private, market-driven entities and mandatory language when creating rules for the Secretary, a federal official over whom Congress exercises control, has no effect on the proper interpretation of MSP private cause of action.23

4. The District Court relied upon cases involving different issues related to MAO rights and which, accordingly, are inapplicable to the specific issue raised by Humana against Glaxo. The court found that the district court’s reliance on the cases of Care Choices HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003) and Nott v. Aetna v. U.S. Healthcare Inc., 303 F.Supp.2d 565 (E.D. Pa. 2004) as authority to deny MAOs private cause of action rights was misplaced as neither of these cases “had 19 plaintiffs who made an argument based on the MSP Act provision at issue here.”24 Specifically, in Care Choices the court noted that the issue addressed by the 6th Circuit dealt with whether a Medicare-substitute HMO had an implied federal right of action allowing it to recover its expenditures. In this case, the 6th Circuit compared the private cause of action provision under the MSP with § 1395mm(e)(4), the applicable section providing secondary payer rights to Medicare HMO plans. In doing so, the 6th Circuit determined that §1395mm(e)(4) did not create any private right of action. While noting the 6th Circuit’s decision in Care Choices, the court found that the issue addressed by the court in that case was not the same as the cause of action being asserted by Humana against Glaxo. Specifically, the court noted that the issue of whether Care Choices could have brought suit as a private actor under the MSP Act “was neither raised nor addressed and thus the decision of the United States Court of Appeals for the Sixth Circuit cannot guide us here.”25 Likewise, the court found that Nott addressed a different issue from the specific issue being raised by Humana in its action against Glaxo. According to the court, the issue in Nott involved whether the secondary payer provisions related to MAOs and Medicare-substitute HMOs created a federal scheme of enforcement capable of preempting conflicting state laws. As such, it was referenced that the “Nott court noted explicitly that § 1395y(b)(2)(B)(ii), the government’s cause of action for reimbursement, was not implicated in the case … and it nowhere mentioned the § 1395y(b)(3)(A) private cause of action.”26 Accordingly, the court found that since the Nott decision “does not discuss whether a private insurer providing Medicare services can bring suit under the MSP private cause of action, it is of limited relevance here.”27

5. Legislative history and policy considerations support the conclusion that MAOs have, and should have, private cause of action rights. The court also cited legislative history and policy considerations in further support of its decision. In terms of legislative history, the court found that one of Congress’ goals in creating the Medicare Advantage program “was to harness the power of private sector competition to stimulate experimentation and innovation that would ultimately create a more efficient and less expensive Medicare system.”28 It was further noted that Congress believed that the MA program would “continue to grow and eventually eclipse original fee-for-service Medicare as the predominant form of enrollment under the Medicare program.”29 From this history, the court concluded that a main objective of the MA program, like the MSP Act with respect to original Medicare, was “designed to curb skyrocketing health costs and preserve the fiscal integrity of the Medicare system.”30 Along these lines, the court reasoned that not permitting MAOs private cause of action rights would frustrate the underlying objectives upon which the MA program was premised. The court stated: If Medicare could threaten recalcitrant primary payers with double damages and MAOs could not, MAOs would be at a competitive disadvantage, unable to exert the same pressure and thus forced to expend more resources collecting from such payers. It is difficult to believe that it would have been the intent of Congress to hamstring MAOs in this manner.31 In addition to cost savings, the court noted that Congress also structured the MA program to allow MAOs to deliver efficient services to Medicare beneficiaries. Toward this goal, the court stated that when a MAO recovers from primary payers it realizes cost savings which can result in additional benefits to its enrollees. Accordingly, the court found that “ensuring that MAOs can recover from primary payers efficiently with a private cause of action for double damages does indeed advance the goals of the MA program.”32 Taking these factors into consideration, the court concluded that “[o]ur understanding of the policy goals of the MA program merely buttresses what we have already found in the text of the Medicare Act: MAOs are not excluded from bringing suit under the MSP private cause of action.”33 20

Based on all the foregoing reasons, the court reversed the district court’s order and remanded the case back to the district court for further proceedings.

Practical Considerations The Avandia case brings to the forefront important questions concerning Medicare Advantage (MA) plans, in terms of the nature and extent of the rights afforded MA plans, as well as the compliance obligations primary payers (and others) have, or may have, in relation to such plans. A complete examination into this emerging and complex area is beyond the scope of this article. Nevertheless, the court’s decision in Avandia is significant and should be considered seriously by primary payers in their dealings with MA providers. Up until now, the bulk of the case law addressing MA plans has basically limited MA recovery rights to contractual claims to be addressed in state court. By now holding that the MSP’s private cause of action extends to MA plans, the Avandia decision has the potential to dramatically change this landscape as it arguably places MAOs on equal footing with the federal government in certain respects. It is unknown at this time if a request for an en banc hearing before the full third circuit panel will be submitted. To the extent any such request for a re-hearing is denied, it will then be necessary to monitor this case to see if Glaxo will appeal the matter to the United States Supreme Court and, if so, whether the Supreme Court would agree to hear the case. While a point by point substantive critique of the court’s decision was not the focus of this article, there may very well exist legitimate bases to question or challenge some of the court’s conclusions on certain technical and interpretational points. Further, it remains to be seen how the Avandia decision will be viewed and assessed by future courts called upon to address similar MA issues. In the meantime, primary payers are left to deal with the Avandia decision in the “here and now.” In that regard, this decision seemingly expands MAO recovery rights. From a practical standpoint, the likely end result is that MAOs may now have the legal launching pad they have been seeking to strengthen their recovery efforts, including the ability to assert claims for double damages using the MSP’s private cause of action provision. Thus, it is very likely that primary payers will find MA plans more aggressively pursuing their recovery claims. Along those lines, primary payers should ensure that approaches are in place to address the MA issue. While an exhaustive review of all the applicable consideration points is beyond the scope of this article, at a base level the starting point would entail identifying when a MA plan is involved. From there, primary payers need to arrive at a well reasoned understanding of what their compliance obligations are, or may be, with respect to MA plans. This involves a close examination of the relevant MSP and MA statutory provisions and regulations, case law, and all other possible authority. Review of the actual terms of the MA plan at issue may also be in order. Given the unsettled and emerging state of affairs regarding MA compliance, consultation with experienced counsel in devising these approaches and making these determinations should be seriously considered. ______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 [email protected] or (786) 459-9117. ______1 The district court’s opinion is contained at In re Avandia Marketing, Sales and Products Liability, 2011 WL 2413488 ( E.D. Pa. June 13, 2011). 2 The information provided in this paragraph was obtained from The Henry J. Kaiser Foundation, Medicare Fact Sheet - Medicare Advantage, November 2011. www.kff.org. 3 See e.g., 42 U.S.C. §1395w-22(a)(4) and 42 C.F.R. § 422.108 regarding MAOs; and 42 U.S.C. §1395mm (e)(4) and 42 C.F.R. § 417.528(b) regarding Medicare Advantage HMOs. 4 Codified as 42 U.S.C.A. § 1395y(b)(2)(A). By way of note, the referenced paragraph (1) relates to secondary payer issues related to group health plans and, as such, was inapplicable to the issues presented in Avandia. 5 The court noted that the United States Code Service uses the word “title” instead of the term “subchapter” as used in the United States Code Annotated (USCA) version of the statute. In regard to same, the court noted that it elected to utilize the wording as used under the USCA. In re Avandia Marketing, Sales and Products Liability, No. 11-2664, 2012 WL 2433508 (3rd Cir. June 28, 2012), n. 10. 6 Id. at *5. 21

7 Id. at 5. Although the court ruled that the MSP private cause of action sweeps broadly to include MAOs, it noted that “it is not so broad that it can function as a qui tam statute, allowing a private party to bring suit as an agent of the government to collect moneys owed to the government.” (citations omitted) Id. at n. 9. 8 Id. at 6. 9 Citing, Cooper Univ. Hosp. v. Sebelius, 636 F.3d 44 (3d Cir.2010) (quoting Rehab. Ass’n of Va., Inc. v. Kozlowski, 42 F .3d 1444, 1450 (4th Cir.1994)). 10 The court’s reference to Chevron relates to the case of Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, and L.Ed2d 894 (1984). 11 Id. at 843. 12 Id. at 844. 13 Citing, Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 174 (3d Cir.2009); see also 42 U.S.C. § 1395hh(a)(1) (“The Secretary shall prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter.”); 42 U.S.C. § 1395w–26(b)(1) (“The Secretary shall establish by regulation [ ] standards ... for [MA] organizations and plans consistent with, and to carry out, this part.”) at 11 14 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 11. 15 The full text of 42 C.F.R. § 108 (f) reads as follows: (f) MSP rules and State laws. Consistent with § 422.402 concerning the Federal preemption of State law, the rules established under this section supersede any State laws, regulations, contract requirements, or other standards that would otherwise apply to MA plans. A State cannot take away an MA organization’s right under Federal law and the MSP regulations to bill, or to authorize providers and suppliers to bill, for services for which Medicare is not the primary payer. The MA organization will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter. 16 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 11. 17 Id. at 11 citing CMS’ Memorandum to Medicare Advantage Organizations and Prescription Drug Sponsors entitled Medicare Secondary Payer Subrogation Rights (December 5, 2011). While neither the court nor CMS cited any specific cases in regard to the reference of recent decisions limiting MAO’s remedies to State court actions, the author references the following cases for the reader’s consideration: Care Choices HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003); Nott v. Aetna v. U.S. Healthcare Inc., 303 F.Supp.2d 565 (E.D. Pa. 2004); and Parra v. PacificCare of Arizona, Inc. No. CV 10-008-TUC-DCB, 2011 WL 1119736 (D.Ariz., March 28, 2011). 18 Id. 19 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 11. 20 Although it was not referenced in the court’s opinion, the author also notes that 42 C.F.R. § 422.108 (d) contains a similar provision as follows: (d) Collecting from other insurers or the enrollee. If a Medicare enrollee receives from an MA organization covered services that are also covered under State or Federal workers’ compensation, any no-fault insurance, or any liability insurance policy or plan, including a self-insured plan, the MA organization may bill, or authorize a provider to bill any of the following-- (1) The insurance carrier, the employer, or any other entity that is liable for payment for the services under section 1862(b) of the Act and part 411 of this chapter. (2) The Medicare enrollee, to the extent that he or she has been paid by the carrier, employer, or entity for covered medical expenses. 21 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 6. 22 Id. at 7. 23 Id. 24 Id. 25 Id. 26 Id. at 8. 22 27 Id. at 8 In contrast to the Care Choices and Nott cases, the court noted that the 6th Circuit in the case of Bio–Medical Applications of Tenn., Inc. v. Central States Health and Welfare Fund, 656 F.3d 277 (6th Cir.2011) did specifically consider the MSP private cause of action provision. However, the party bringing suit in that case was not a MAO plan or Medicare substitute HMO. As such, the court noted that Bio-Medical did not consider how a MAO plan or Medicare-substitute HMO could, or would, fit into the issues and analysis discussed by the court in that case. 28 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 8, citing, H.R.Rep. No. 105–217, at 585 (1997) (Conf.Rep.) (stating that MA program was intended to “enable the Medicare program to utilize innovations that have helped the private market contain costs and expand health care delivery options”). 29 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 8, citing, H.R.Rep. No. 105–217, at 585 (1997) (Conf.Rep.) at 638. 30 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 8, citing Fanning v. United States, 346 F.3d 386, 388 (3d Cir.2003). 31 In re Avandia Marketing, No. 11-2664, 2012 WL 2433508, at 10. 32 Id. 33 Id. Thanks to the 2012 FWCI

Program Committee James N. McConnaughhay, General Chairman Steven A. Rissman, Program Chairman

Robert Barrett John J. Lazzara Margaret Baumann Nat Levine Geoffrey Bichler James McConnaughhay Maxine Boyer Diana McCluskey April Brader Dr. James McCluskey Sharon Brown Kris McConnell Candice Buchanan Nell Merritt Joan Collier Ray Neff Steve Coonrod Dr. Gary Newcomer Melissa Corah Bob O’Halloran Sue Coterel Hana Osman Ann Crutchfield Janet Phillips Lorry Davis Bill Pipkin Maria Dayi Rigoberto Puente-Guzman Robert Dietz Betty Reid Teresa Elkins Claude Revels Dino Fabrizio Steven A. Rissman Jean Feldman Harry Rosenthal Gregory Foppiani Marc Salm George Furlong Debbie Scott Kevin Glennon Mark Siciliano Rafael Gonzalez Scott H. Silver Michele Hand Dr. Sanford Silverman Raymond Harbison Jacque Steele Debra Hoffman Ellen Townsend Tracey Hyde Karen Ursulich H. George Kagan Lisa Wagner Joan Kantrowitz Dr. Michael J. Webb Monnie Kinlaw Scott Westman David W. Langham Glen D. Wieland 23 WCI Hall of Fame Inducts Albert M. Frierson

After graduating from Duke University Law School in 1962, Al Frierson began the practice of law with the firm of Henderson, Franklin, Starnes & Holt in Fort Myers. In the first year, in addition to civil litigation, he started handling Workers' Compensation cases on the defense side of the practice. Over the years, the firm grew to more than 60 attorneys and Al was the manager of the Workers' Compensation Department which, at one time, had twelve attorneys. Over the years, he represented more than 50 insurance companies and numerous employers. He retired from the firm at the end of 2003 after more than 40 years of service. In January of 2004, he opened his own professional association to handle workers' compensation mediations having been certified by the Supreme Court of Florida in 2003. For the past eight years, he has worked fulltime as a private mediator. His area of practice takes in all of southwest Florida from the Tampa Bay area to Naples. He also handles selected cases in Lakeland, Orlando, West Palm Beach as well as Fort Lauderdale and Miami. Al was one of the founding members of the Workers' Compensation Section of the Florida Bar in 1974. He served on the Executive Council for 15 years and chaired the Section twice in 1978-79 and 1988-89. He frequently chaired the Legislative Committee of the Section as well as the Education Committee. Today, he serves as an Emeritus member of the Executive Council. Al helped implement the Board Certification program for the Section. He became Board Certified in 1988 and continued until he retired from the active practice of law in 2004 and became a mediator. Al Frierson is presented with his WCI Hall of Fame plaque by During the years of his practice, Al was appointed Steve Rissman, WCI Program Chair by three different Florida Governors to serve on Legislative Task Forces or special legislative committees on the Workers' Compensation Law. (Governor Bob Graham in 1979; Governor Robert Martinez in 1988-89; Governor Lawton Chiles during the 1993 Special Session on Workers' Compensation.) He was also appointed by Lee Moffitt, the Speaker of the Florida House of Representatives, to be on a special legislative advisory group in 1983. During those years, he drafted many pieces of legislation that ultimately became law. In addition, Al was appointed to the advisory committee to the three member panel that developed and implemented the Florida Impairment Rating Guide that ultimately became known as the 1996 Florida Uniform Permanent Impairment Rating Schedule. Al is a co-author of the First Edition of Florida Workers' Compensation Practice Manual. He has given numerous speeches and seminars on this field of the law to attorneys, adjusters, insurance carriers, risk managers, and businessmen all over the country including the International Association of Accident Boards and Commissions (IAIABC), the Southern Association of Workers' Compensation Administrators (SAWCA), the National Association of Self Insureds and The Academy of Florida Trial Lawyers. 24 On three occasions, he was invited to speak at the Annual Meeting of the Workers' Compensation Section of the California Bar in both California and Nevada. He has been recognized in two publications for his service in this field of the law. See: Workers' Compensation in Florida 1935-1995, The History, People and Politics (1995) and The Circle Solution, How Florida's Bold Reform of Workers' Compensation - Wage Loss - Came About (1982). In 1986, Al was the Honoree of The Friends of 440. In 2008, he was inducted into the College of Workers' Compensation Lawyers. In 2008, the Workers' Compensation Section of the Florida Bar created a special Professionalism Award to be presented periodically to the individual who most exemplifies the qualities of a Workers' Compensation Professional. The award was named the Albert M. Frierson Professionalism Award and he was its first recipient. (Later renamed the Frierson-Colling Award.) Al served four years as Chair of the Judicial Nominating Committee for the Twentieth Judicial Circuit. He has been listed in Best Lawyers In America since 1995 as well as Leading American Attorneys (1998). He was given an "AV" rating by Martindale-Hubbell Lawyers Directory in 1978. Al has served for more than ten years as the Moderator of the Community Prayer Breakfast in Fort Myers held on the first Thursday of May each year. For more than 45 years, he has been active in the First Baptist Church of Fort Myers, of which he is a deacon and corporate President.

The WCI “Rebranding Committee”

The “rebranding” of the WCI and the launch of www.WCI360.com is the result of exceptional leadership and the dedication of an outstanding team of workers’ Compensation professionals, event planners, physicians, and more. The WCI recognizes and congratulates these professionals on their commitment and contributions to the WCEC and www.WCI360.com James McConnaughhay, General Chair Steven Rissman, Program Chair Cathy Bowman Bret Cade Joan Collier Ann Crutchfield Stephanie Dodson Carrie Ferenac Tad Grattan Bill Hurst Diana McCluskey James McCluskey, M.D. Gerry Rosenthal Harry Rosenthal Mike Ryan Kathy Shelton Michael Webb, M.D. Scott Westman Stacey Whidden 25 26 WCEC Adjuster Breakout 2012, Better than Ever! The Adjuster program remains in two programs in 2012. Both programs lead- off with the live surgery that has become a staple of WCEC. This year, an arthroscopic ACL reconstruction will be performed by Dr. Randy Schwartzberg, and narration and explanation will be provided by Dr. Steven Weber, both of the Orlando Orthopaedic Center. This program is a highlight of the program, and is a rare opportunity to have a picture be worth a thousand words. Attendees will come away with a far clearer understanding of this procedure. At 10:00, the program one agenda will feature Mark Siciliano, Liberty Mutual, and a panel of experts including Teresa V. Elkins, Sedgwick, Kristy

McConnel, Darden Risk Management, and Crystal Chancey, Publix. They will Steven E. Weber, D.O. explore predictive modeling. Everyone claims predictive modeling works well and has changed the cost of claim outcomes. Although there seems to be agreement, how is this conclusion reached? This program will cover the early findings of predictive modeling and how it is REALLY impacting the TRUE cost of workers’ compensation losses. This analysis of the trending and the evidence supporting this process will be eye-opening. Concurrently, in Program Two, moderator Dessi Sanders, FCCI, will lead panelists Timothy Dunbrack, Kelley Kronenberg Gilmartin Fichtel et. al, and Maggie Conatser, FICURMA through a staged accident. Insurance scams including staged accidents are at an all time high and causing crippling costs to employers and carriers. Immediate, methodical and savvy accident investigation is vital both to provide benefits to the deserving but also to combat con artists. If you want to stay one step ahead of the hustlers, then this is a must-attend presentation where seasoned claims’ professionals and legal counsel will present a staged accident and then offer key tips and technology to investigate, uncover and prosecute those that are out to cheat the system. This Randy S. Schwartzberg, M.D. program is one of a kind and designed to give the claims professional a set of take-aways to enhance their prowess at performing effective investigation. At 11:00, Program One will venture into Claims Decision Management with Mark Siciliano, Liberty Mutual, Kim St. Jean, Summit, and Chrystal Mueller, AON Risk Solutions. This program will focuses on the tough decisions in a claim and the importance of the timing of that decision. From when to question medical treatment plans, to when to get the Medicare Set- Aside done. This panel will cover some ground on building the plan, and executing it to make better claims decisions and affect better management. Concurrently in Program Two, attorney E. Louis Stern and Candice Buchanan, Gallagher Basset, and attorney John P. Daly, will illuminate “coverage B” and provide insight of what it covers and how to avoid exposure. Attempts by claimant's attorneys to circumvent immunity and pursue employer liability (coverage "B") lawsuits are ever on the rise, particularly for those accidents resulting in death or catastrophic injuries. In order to effectively handle claims and protect the interests of the employer, the workers' compensation adjuster in today's climate must understand how denials of benefits and other claims' decisions may impact and even create exposure for an Attorney Susan Marks employer's liability lawsuit. This is a must see presentation for claims’ professionals of all experience levels, the panel will explore basic immunity and exclusive remedy concepts as well as more advanced strategies used by plaintiff 27 and defense attorneys. Practical tips on spotting and avoiding potential claims will be provided along with a discussion of recent litigation trends and developments effecting coverage and liability. The presentation is "virtually certain" to provide you with increased knowledge and understanding of this important subject. After lunch, the Program One agenda will delve into appellate practice with two live oral arguments before the First District Court of Appeal. This opportunity is unprecedented for those unable to travel to Tallahassee. The opportunity to see live oral arguments provides an insight into this process and the methodology of the Court in considering such arguments. During the same time, in Program Two, attorney Scott Silver will moderate a panel including Sarah Welcomer, Liberty Mutual, Alicia Savoy-Boyd, The Hon. Thomas Portuallo Harford, Laura Christensen, Sedgwick, and Karen Payer, Travelers. They will Provide an interactive and lively presentation on all of the “hot topics” facing claims professionals. This will include s of the entire convention. All of the claims’ professionals on this panel will present detailed analyses of challenges like advances, drug repackaging and quick closure techniques. At 3:00, Program One will transition to an analysis of the mistakes that can occur in claims handling. This is a highly practical session on how to avoid the traps that are intentionally and unintentionally set for adjusters, by a variety of people during the handling of a typical claim. Hear this exceptionally experienced panel give you meaningful tips on how to avoid the blips, bloopers and blunders of claims’ handling. The discussion will be led by attorney Ray Lopez, and include input from panelists attorney Ronald Greninger, Amie Pennabaker, Summit, and Lisa Wagner, Southern Eagle Insurance. The 3:00 Program Two presentation is on Social Media and the impact it is having on claims investigation. Social media has added a new dimension in claims’ Chrystal Mueller, AON Risk investigation. It has an impact on the investigation itself, surveillance and what is allowed in evidence before the judge of compensation claims. This panel has the expertise to analyze all the areas for you. It is important that the adjuster investigate the claimant in an ethical manner even when social media is being utilized. If tactics were not ethical prior to social media, they are still not ethical. Surveillance cannot trap the claimant into doing something – the claimant must do the action him or herself. In litigation, social media is in its infancy. Our panelists will tell you how to get the information in a usable fashion and how to get it before the judge so that you can aggressively, but ethically, investigate claims. This panel will include Jeffrey Sweat, SIU Central, Cynthia Sage, FCCI, Jason Mueller, Summit and Kristin Hiltz, Sedgwick. Program One will conclude with a lively ethics program Moderated by Krista Casey, Sedgwick, and including input from attorney Susan Marks, Elizabeth Wilson, Travelers, and Daphyne Daniels, PMA Companies. This presentation will focus on the pressing ethical issues of today's claim handling. It is intended to arm the claims professional with tactics to assist in maneuvering through the day to day medical management and utilization review challenges. This program will provide take-aways and a new perspective on properly addressing medical issues. Simultaneously, Program Two will finish with a live mock trial, the Honorable Thomas Portuallo presiding. Complimenting the exposure to appellate law earlier in the program, this segment will feature attorneys Ramon Malca and Robert Rodriguez presenting a final merits hearing. Because of the success of mediation, some in the audience may never have seen a trial. Here is your chance. Judge Portuallo will convene his courtroom for a one hour trial with two of the best lawyers in the State of Florida. Ray Malca will appear for the claimant and try to prove permanent total disability. Robert Rodriguez will aggressively defend for the employer Attorney Ron Greninger, and carrier alleging no permanent total disability and the Martin v. Carpenter (fraud) defense. 28

Dr. Weber Narrates the Live Surgery Program in 2011 Florida Rules Hearing Announced

There will be a Rules hearing regarding proposed amendments to the CHAPTER 60Q-6 RULES OF PROCEDURE FOR WORKERS’ COMPENSATION ADJUDICATIONS

Wednesday, August 22, 2012, 8:00 a.m., Orlando World Center Marriott 8701 World Center Drive Orlando, Fl 32821 Tampa Room

The Rules are published on the OJCC website, www.fljcc.org 29 30 Texas Case Proves Employee

Leasing too Good to be True

By David Depaulo

Mom used to say that if something seems too good to be true, then it is. Unfortunately this happened to a Texas employer with tragic consequences. In July 1999 Jackson Brothers Hot Oil Service entered into a contract with Business Staffing, Inc. (BSI) for a variety of administrative services, and this contract provided that BSI was responsible for acquiring "workers compensation insurance coverage and/or benefits" for BSIs employees. BSI was the holder of the only policy issued by Transglobal Indemnity, which had an annual premium of $4,100 for coverage of up to $1,000,000 per accident to cover all of BSIs 150 client companies 2,000 leased employees. My guess is that Jackson Brothers didn’t know how much BSI "paid" for its David Depaulo, Esq. insurance at the time, or that the premium was unrealistically low for the risk being covered, or that they cared at all they were saving money. They probably also didn’t know at the time that Transglobal was created in the 1990s by Harry Sewill and Richard Chapman, the partial owners of BSI. It was set up to be headquartered in Turks and Caicos in the Caribbean, but it maintained no office or employees there. Jackson Brothers also probably didn’t know at the time that neither Sewill, Chapman, BSI nor Transglobal was licensed to conduct insurance business in the State of Texas. That all changed in 2005 when an oil field fire set a truck driven by 27-year-old Cody Jackson ablaze. Cody suffered deep second- and third-degree burns on 65% to 70% of his body. After 18 surgeries and 77 days in intensive care, he "made a remarkable recovery" and is now back to work at his old job as a hot oil truck driver. Cody was the son and nephew of the Jackson Brothers. One can only imagine the grief the family went through while Cody recovered. After Cody’s injury, BSI paid him weekly temporary disability benefits for 18 weeks. It also paid approximately $13,000 of his incidental medical bills until Dec. 6, 2006, but as of that date, still owed $1,016,000 in medical costs for his treatment by Texas Tech University Health Sciences Center and the University Medical Center Hospital burn unit. When BSI failed to respond to Cody’s demand for payment on the outstanding hospital bills, he joined Jackson Brothers in a lawsuit against the company, its directors, Transworld, Sewill, Chapman and others in the District Court of Andrews County. The plaintiffs asserted claims for fraud and violations of the Deceptive Trade Practices Act (DPTA). After a week-long trial, a jury

31 returned a verdict for Jackson Brothers and Cody against BSI. The jury awarded Cody Jackson $1,016,000 in past medical costs, $5,000 for future medical costs, and $1,161,000 in unpaid lifetime income benefits. The trial judge ordered an additional $700,000 in damages against BSI and an additional $1,000,000 against Transglobal for their violations of the DTPA, and exemplary damages of $250,000 against Transglobal; $250,000 against BSI, and $37,500 against Chapman and against Sewill. He also awarded Jackson Brothers $47,000 as a disgorgement of the fees it had paid BSI. The defendants appealed, but the Texas 8th District Court of Appeals on Thursday rejected their arguments. I can only hope that Jackson Brothers and Cody are successful in collecting - my guess from the actions of BSI and related entities is that there is no reasonable chance of getting anything close to the court awards because once a fraudster, always a fraudster. Small employers however should take heed when "leasing" employees. I had posted the other day that I doubted very many employees give any thought whatsoever to whether a prospective employer is properly covered. Likewise, I doubt small employers give any thought to whether they have proper coverage, making them particularly susceptible to schemes perpetrated by unscrupulous service vendors.

Work comp flies under the radar for the vast majority of workers and employers ... until tragedy hits. Then reality serves up some grave lessons.

WCEC, A Partnership Between

32 WCI Hall of Fame Inducts Stewart Colling

Stewart L. Colling was elected posthumously to the WCI Hall of Fame. On April 28, 2009, Stewart collapsed while jogging with his son, and died later that night. His passing was a sudden and unexpected tragedy. The workers’ compensation community will miss his leadership, support, and commitment. Stewart was born in Winter Park, Florida, December 30, 1959. He attended Winter Park High School. His natural talent and competitive spirit won him a full scholarship to Rollins College, where he earned his Bachelor of the Arts degree in 1982. He then attended Stetson College in nearby DeLand, Florida, receiving his Juris Doctorate in 1985. At Stetson, he was a member in Delta Theta Phi Law Fraternity and received recognition for his participation in the Freshman Moot Court Competition. He was admitted to the bar in Florida and the U.S. District Court in 1986. He was admitted to the bar in Texas in 1993 and in Colorado in 1995. Stewart demonstrated his leadership in a number of legal organizations. A member of the Orange County Bar Association since 1986, he was chair of the Association’s Personal Injury Section 2005-2006. A member of the Florida Justice Association (formerly the Academy of Florida Trial Lawyers) since 1991, he served on the Board of Directors and as Chairman of the Workers’ Compensation section 2004-2005. He was been a member of the Florida Workers’ Advocates since 1990 and served on the Board of Directors since 1997. He also served as the organization’s President (2002) and Vice-president (2001). While serving as president of the Florida Workers’ Advocates, he was appointed by Governor Bush to the Governor’s Commission on Workers’ Compensation Reform. He was a member of the Executive Council of the Workers’ Compensation Section of the Florida Bar from 2006-2008. Since 1986, Stewart worked exclusively in the areas of personal injury and workers’ compensation. During that time he helped nearly 15,000 victims of personal injury, including about 10,000 workers injured on the job. He was a frequent lecturer at legal seminars. His lectures inspired law students and junior colleagues, helped workers and injury victims understand their rights, and guided employers to meet the needs of their employees, reducing the need for antagonistic court proceedings while preserving the rights of injured workers. He was also active in politics, contributing time and money to the campaigns of local, state, and national candidates he supported, and helping to write and campaign for legislation to improve the workers’ compensation process. A former partner in the Morgan Colling and Gilbert law firm, he was a founding partner of Colling, Gilbert, Wright & Carter, PA. For his work, he has been recognized and praised by his peers, receiving Martindale- Hubbell’s coveted AV rating. A dedicated husband father of three, he was active and well-known in his community. He was known by friends as being generous with his time, which he dedicated to the Rotary Club, the YMCA, and other local organizations. He is survived by his wife Nancy, his sons Clay and Jackson, and his daughter Casey.

33

The Moot Court Finals are Judged Each Year by the First District Judges

Statewide Judicial Nominating Commission Meeting

August 13, 2012; 2:00 p.m. Telephonic meeting, 1.888.670.3525 conference code 2492172867

August 20, 2012; 9:00a.m. Orlando World Center Marriott Resort & Convention Center 8701 World Center Drive Orlando, Florida 32821 Grand Ballrooms 9 & 10

Who will be interviewed: Candidates for the Miami vacancy (Judge Harnage retirement) Candidates for the Tampa vacancy (Judge Murphy retirement) Candidates for the vacant Commission seat in the Fifth DCA For reappointment: Honorable Stephen Rosen (SPT) Honorable Alan Kuker (MIA) Honorable Mary D’Ambrosio (WPB) Honorable Thomas Sculco (ORL) Honorable Gerardo Castiello (MIA)

Details at www.fljcc.org Statewide Judicial Nominating Commission tab 34 Thoughts on Risk Management from

the WCEC Program Chairman

By: Steven Rissman

The Breakout for Risk Management starts out with a bang on Monday afternoon of the 67th Annual Workers’ Compensation Educational Conference (WCEC). Brenda Pagilaro, General Counsel for City Furniture, is the program moderator. We have unparalleled national experts who you will want to hear. Max Koonce,Walmart, Marc Salm, Publix and Scott Rogers, Sedgwick, present on the Art of Self Insurance (1:00 – 2:00 pm, Grand Ballroom 8B). Where could you go to get a more comprehensive informative education on this subject? These are the experts from which the usual speakers learn. If you are a risk manager and if you have involvement with self-insurance, this is the place to be. There will be a discussion about significant deductibles and retention and what it takes to establish and Max Koonce maintain a self-insurance program over the long- term. The discussion will include the need for state of the art technology information systems, along with a strong safety and loss control culture and aggressive claims management programs and strategic management consideration. You will want to alter your plans in order to make sure you see this session. The Breakout continues Monday with three more excellent presentations. The first presentation allows our two national experts to talk about “Managing Risks.” Vin Foderingham, from Bealls, Inc. and Arden Young, a long time risk manager and now Vice President of Gallagher Bassett Services, will give risk managers and others specific road maps for how to effectively manage business Arden Young risks in a variety of ways, including creating and achieving internal and external business partnerships and measuring success through the use of data. From 3:15 – 4:15 pm, in the same room, some of the most knowledgeable risk management experts in the country will educate you and update you on Medicare Set-Asides, one of the most important yet confounding issues around. Roy Franco, a nationally known expert on the subject, teams with Fred Pachon, The Select Family of Staffing Companies, and with Pamela Webster, Advanced Auto Parts, to give you a full scale update on how Medicare Set-Asides can affect your bottom line. Monday concludes with the risk management breakout takes its first ever look at Diversity in the workplace. Extensive research has been done to determine what population changes mean for the political and business climate, but little has been done to access Vin Foderingham the effects this can, and will, have on risk management. Mike Cirillo and Wendy Lanphere from 3iCorp.com, along with Patrick Sterling, the Risk Manager for Texas Roadhouse, take a concise look at what risk managers should be doing on this ever growing issue. The Breakout for Risk Managers has gotten so popular that we have added an extra half day. Now, in addition to having a Monday program, there is also a program from 10:00 – 12:00 pm, in Grand Ballroom 8B on Tuesday, and Wendy Lanphere what a program it is. We have filled Tuesday morning with an 35

extraordinary panel of heavy hitters – when they talk, you will want to listen. This super-panel is being moderated by Charles Martin, a Managing Director of Marsh Claims Consulting. He will be joined on the panel by national experts who have no equal. They are David North, President & CEO of Sedgwick CMS, Danielle Lisenbey, President & CEO of Broadspire Services, Inc. and George Neale, Executive Vice-President and General Claims Manager, of Liberty Mutual Insurance. No one interested in any facet of workers’ compensation should miss this panel! They will Danielle Lisenbey discuss everything from consolidation of large TPA companies to the pitfalls of National Healthcare, as well as bundling and unbundling of claims services. Whether you are a broker, an agent, a risk manager, claims’ person, a lawyer or just someone interested in what happens when four leaders of this quality are put together on one panel, you don’t want to miss this.

For more information about the Workers’ Compensation Educational Conference George Neale or to register, please see wci360.com. Thanks to the 2011 Multistate Committee Members!

The WCI News is produced by the Workers’ Compensation Institute, Inc. P.O. Box 200, Tallahassee, FL 32302 , Phone (850) 425-8156 · Fax (850) 521-0222. All rights reserved. “Workers’ Compensation Institute,” and “WCI,” and “The Workers’ Compensation Educational Conference” and “WCEC” are all marks of the WCI.

36 Texas AG Opinion Supports Evolution of the Legal Process in the Modern World

The Texas Attorney General has concluded that depositions in Texas proceedings may include those recorded by “other than stenographic means.” The opinion (GA-0928) issued May 14, 2012 supports a process in which will likely portend significant cost savings in the litigation process. In a process similar to many states, certain officials may request an interpretation of existing law from the Texas Attorney General. Such opinions are not necessarily binding law in themselves, but provide guidance to state officials on important questions. Courts are likely to find such opinions persuasive upon interpretations of statutory provisions and rules. The Texas Court Reporters Certification Board requested such an opinion regarding the use of depositions in litigation. Depositions are a discovery tool, used in the vast majority of jurisdictions, to afford a litigant the opportunity to question another litigant or witness under oath prior to trial. Although many allow the use of “written question” depositions that are more similar to interrogatories, the most frequent context for depositions is an interactive exchange of question and answers, traditionally with a court reporter present to record the exchange. In GA-0928, the Texas Attorney General considered the provisions of the Texas Rules of Civil Procedure, specifically Rule 199.1 (1998) and subsections 52.021(f) and 52.033 of the Government Code. The procedural rule provides that the notice of deposition “must state the method of nonstenographic recording to be used and whether the deposition will also be recorded stenographically,” suggesting that nonstenographic records are acceptable. Subsection 52.021(f), however, requires that "all depositions conducted in this state must be recorded by a certified shorthand reporter." Thus, there is the argument that all depositions would necessarily be conducted before a court reporter. The Attorney General concluded, however, that section 52.033 of the Government Code, provides an exception to the subsection 52.021(f) requirement for “(1) a party to the litigation involved; (2) the attorney of the party; or (3) a full-time employee of a party or a party's attorney.” GA-0928 notes that the Texas Supreme Court has already interpreted this statutory exception to allow attorneys to conduct a deposition and have the proceedings recorded by audio or video tape. The Attorney General concludes that those listed in section 52.033 may therefore record a deposition by means other than stenography, and that such a deposition “may be used to the same extent as a deposition taken by stenographic means.").

37

The relevance of this conclusion is clear, and signals cost-savings for litigants. Conversely, to the detriment of the court reporting industry, The WCI Hall the confluence of the Texas Code and procedural rules signal a likely decrease in court reporting business. This is not likely indicative of the death of an of Fame industry. The spirit of the Texas procedural rules and statutory exemptions for litigants and The WCI has recognized that there are a lot of individuals their attorneys will limit the instances in which who have made the Florida workers' compensation system court reporters will participate when work. In response to that, the Institute decided to sponsor depositions are taken. Similarly, this a Workers' Compensation Hall of Fame effective January interpretation will encourage counsel in Texas to utilize modern technology to preserve 2012. In order to be elected to the Workers' Compensation testimony. With ever-increasing inexpensive Hall of Fame, an individual had to devote an entire career access to recording software and devices such to the betterment of the workers' compensation system. as i-pads, the draw will become difficult to Individuals from industry, attorneys and judges were all resist. With strained state budgets, resistance eligible for nomination and election. The following by prosecutors and public defenders may be inaugural class was inducted in January 2012, and their overcome by public policy. profiles have been highlighted in the newsletters since that However, there will likely remain appropriate instances in which transcriptions of those time. depositions will be beneficial. In a jury Stewart Colling, Esq. proceeding, video depositions may be effective. However, in administrative Tom Conroy, Esq. proceedings such as workers’ compensation cases, counsel may well conclude that only Al Frierson, Esq. limited portions of a particular deposition are needed in litigating a particular issue. In those Dan Hightower, Esq. instances, it will remain the role of the court George Kagan, Esq. reporter to reduce those relevant portions of the recorded deposition to writing, and to certify Joe Keene the correctness for the tribunal. Software and hardware options will likely Steve Kronenberg, Esq. continue to evolve. With new innovations and potentially simpler options for efficiently Hon. David Langham separating portions of an audio or video Hon. John Lazzara recording, the draw of court reporting may further diminish. While the industry is by no Ray Malca, Esq. means finished, legislative decisions such as Texas Code section 52.033 and interpretations Jim McConnaughhay, Esq. like GA-0928 may signal a sentiment that Bob O'Halloran suggests the court reporting industry will contract in coming years. David Parrish, Esq. This interpretation, however, is not shared by the United States Department of Labor, which Steve Rissman, Esq. predicts that the court reporting industry “is expected to grow by 14 percent from 2010 to Hon. Stephen Rosen

2020, as fast as the average for all Gerry Rosenthal, Esq. occupations.” http://www.bls.gov/ooh/Legal/Court- Richard Sicking, Esq. 38 reporters.htm. Glen Wieland, Esq.

WCI Hall of Fame Inducts Richard Sicking

Richard A. Sicking is 74 years old and in his 49th year as a member of the Florida Bar. He came from Van Buren County, Michigan, where there are trees and lakes and not much else. He went to high school on Miami Beach, Florida, in the 1950s -- that was fun! He attended the University of Michigan in Ann Arbor and obtained his law degree from the University of Miami in Coral Gables where he was a member of Iron Arrow (the University's highest honor society). After graduating on a Thursday night, he got married on Saturday morning to Zoe Helmuth Sicking, the colonel's daughter. They have two children, Elizabeth Sicking and Rebecca Sicking-Marotta, and one granddaughter, Kate Marotta, who all live in Columbus, Ohio, home of The Ohio State University (even though he went to school at Michigan). In 1963, he went to work for Kaplan, Ser, Abrams and O'Malley in Miami, representing many labor unions and also doing workers' compensation representing employees and their families (yes, that's Israel Abrams). They eventually became Kaplan, Dorsey, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom and DeCastro and others (yes, that's Gerry Rosenthal). In 1979, he received the Friends of 440 award as a claimant's attorney. He left the firm in 1989 to practice by himself as general counsel for the Florida Professional Firefighters, International Association of Firefighters, AFL-CIO (the firefighters' union), and as workers' compensation panel lawyer for the National Football League Players' Association, AFL-CIO (Miami Dolphins and Tampa Bay Bucs), and he continues to represent them. He has served as chairman of the Workers' Compensation Section of the Academy of Florida Trial Lawyers and the Executive Council of The Workers' Compensation Section of The Florida Bar and he has been Board Certified in Workers' Compensation Law since 1988. From 1983 to 1987, he was the labor member of the State of Florida Workers' Compensation Panel which sets the medical fee schedule. He has also been a frequent author and speaker for the Florida Bar CLE programs in workers' compensation. Jim McConnaughhay claims that Richard Sicking is responsible for naming the Florida Workers' Compensation Institute (FWCI) at its founding, which goes to show that he's been around for a long, long time.

39 www.WCI360.com EDITORIAL GUIDELINES

The Workers’ Compensation Institute (WCI) is a nonprofit educational organization that serves as a comprehensive resource to all workers’ compensation stakeholders. The WCI is an outgrowth of the long-established Florida Workers’ Compensation Institute. FWCI remains in existence under the WCI umbrella and continues its Florida focus, while the national organization provides a broader outreach across all states. The WCI sponsors an annual Workers’ Compensation Educational Conference (WCEC) in Orlando in August, familiar to many through the sponsorship of FWCI. Now in its 67th year, the conference brings together workers’ compensation professionals from across the country for networking and information sharing and provides an opportunity for vendors to display their products and services. The WCI website contains state-specific and national workers’ compensation news and feature articles targeted toward claims professionals, the legal and medical communities, insurers/brokers/agents, employers, and employees. In addition to providing information to all stakeholders, the website offers a platform for interaction and community-building and promotes the annual national conference. We welcome website submissions of bylined articles and press releases from companies and individuals based on the following editorial guidelines. · Bylined articles must be of general interest to members of the workers’ compensation community (claims professionals, risk managers, health care and medical providers, legal community, insurance executives, employers, employees). The articles may be state-specific (e.g., new legislation in California) or broader-based (e.g., How to Create an Effective Safety Program; Return-to-Work Can Save You Money). While case studies or proprietary data may be cited, articles should not be “advertorials” for specific companies or products. · Articles may not have appeared previously in wide circulation (limited prior release to membership groups, clients and the like is acceptable). · Original articles are embargoed until publication on the WCI website, after which the author may distribute to other media or interested parties, provided the article carries the tag line: “This article originally appeared on DATE on the Workers’ Compensation Institute’s website, and is republished here with permission.” Linking to the WCI website is encouraged and unrestricted.

LENGTH: Recommended length is 600 - 900 words; longer articles will be considered.

FORMAT: Word document, Times New Roman, 12-point, single space, no headers or footers or special formatting.

ID: Author’s byline appears at the top of article. Author is further identified on the website with name, title, company, brief description of company, e-mail, phone, and website.

DEADLINE: Time-sensitive articles may carry a deadline, which will be mutually agreed upon by the author and WCI.

Press releases publicizing a company’s or person’s accomplishments, new products, financial results/ratings, and the like are accepted. Press releases are subject to editing and will be posted by the WCI editor as time permits.

For more information on submitting material to the WCI website, contact Joan E. Collier, Online Communications Officer, Phone 941-954-3365; [email protected] 40