CMS Clarifies Guidance on Prescription Drugs and Medicare Workers' Comp Set-Aside Agreements. The Centers for Medicare & Medicaid Services issued a new memorandum dated May 14, 2010, to clarify guidance in CMS's April 3, 2009 and July 1, 2009 procedure memoranda regarding prescription drugs administered to Medicare beneficiaries for off-lable and/or unlabeled outpatient uses and whether these drugs are considered covered by Medicare Part D and, therefore, appropriately included in a Medicare Workers' Compensation Set-aside Agreement (WCMSA) proposal. The May 14, 2010 memorandum also changes the Rated Age (RA) language to be included in WCMSAs, as detailed in the August 25, 2008 procedure memorandum. Read the memo

Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law. 

Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, Investigations 5/13/2010. Read it   

Employers Win. Fraud Loses.  A podcast submitted by Rebecca A. Shafer. Hear it 

Longshore Update from the Benefits Review Board, by Janice Ulan, Associate General Counsel, Longshore, Benefits Review Board. Read it

Worker's Pot Smoking Prior to Feeding Grizzly Bears Does Not Defeat Montana Comp Claim, by Thomas A. Robinson. Read it

Witness Fees; Other Costs; Interest.  Chapter 134, which discusses the general rule that witness fees and other expenses incurred in connection with a compensation hearing must ordinarily be borne by the party incurring them, has been updated.  By express statute in a number of jurisdictions, allowance is made for recovery of some fees and expenses if the injured employee is "successful."  How much "success" is required is subject to some interpretation.   

For example, in a recent case from Ohio, Azbell v. The Newark Group, Inc., 2008 Ohio 2639; 2008 Ohio App. LEXIS 2233 (May 27, 2008), the appellate court held it was error to deny reimbursement for claimant's expert witness's fees because, while claimant did not succeed on all claims, the expert supported all claims, and it was difficult, if not impossible, to apportion the fees and costs between the successful and non-successful ones [see Ch. 134, § 134.02 n.1].  Practitioners should be aware that on appeal, costs can usually be assessed against the losing party under general costs statutes and that some states also allow the claimant to collect interest on unpaid benefits.

 

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