National Edition Banner March 2010
Vol 2, Issue 23

Find Solutions & Strategies                              June 6, 2011

Transgender PTransgenders & Workplace Issues

 

It's Complicated

In This Issue
-DEATH BENEFITS
-SHORT TERM DISABILITY
-MEDICAL BENEFITS
-LARSON'S SPOTLIGHT: 5 RECENT CASES: Offset of VA Benefits, LHWCA Employee Status, Jurisdiction in Alleged Fraud Case, Subpoena of Surveillance Videotape, Termination of Worker for Distributing Pornography
-BLOGS @ LEXISNEXIS WORKERS' COMP COMMUNITY: Fraud - a painter double dips
-MSP COMPLIANCE BOOK
-NATIONAL NEWS
-STATE NEWS
-eNEWSLETTER ARCHIVES
A Note From the Editor
Robin Kobayashi 2010

Dear WC Professionals:

 

In this issue we're focusing on recent developments in the transgender movement here in the U.S. and the impact on workplace issues. Thanks to Karen Yotis, Esq. for contributing an article on the N.Y. disability case. 
 
Sincerely,
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
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death benefits

Wedding Cake Topper 1Death Benefits: Transgendered Woman Loses First Round in Texas, by Robin E. Kobayashi, JD. 

 

The controversy and debate over the meaning of marriage and who can marry recently played out in a Texas case where a firefighter, who was married to a transgendered woman, died while fighting a fire at an egg farm. At stake were $600,000 in death benefits and estate assets. The mother of the firefighter, Thomas Araguz III, brought a lawsuit against Nikki Araguz, arguing that the marriage of her son to Nikki Araguz, who was born a man, was illegal since Texas bans same-sex marriages, and that her son's death benefits and estate assets should be given to his two children from a previous marriage.

 

The facts were disputed over when Thomas found out about Nikki's gender identity. Nikki claims she told Thomas a week into their marriage, and he supported her during her gender reassignment surgery.  Thomas' mother, on the other hand, says her son found out about Nikki's gender identity shortly before his death and was planning to get a divorce.

 

On May 26, 2011, the Wharton County judge in the case nullified the marriage on the grounds that it was an illegal same-sex marriage.  Read more.

short-term disability benefits

WheelchairShort Term Disability Benefits: Transgendered Woman Finally Prevails in New York, by Karen Yotis, Esq.

 

The conflict and opposition that surrounds the transgender community was nowhere more apparent than in a New York case where a woman sought New York State Short Term Disability Benefits during her six-week recovery from gender reassignment surgery (GRS) performed on May 30, 2005. It's a story that resonates across the nation, from Hollywood's coverage of Chaz Bono's very public transformation to Chicago's en masse outdoor celebration of same sex unions. Claimant's attorney Catherine J. Palermo didn't mince words when she stated, "I think at every step we were met with personal judgment and disdain. Denise Rhone should have been granted disability benefits immediately and this case should never have arisen."

 

Hartford, the carrier in this case, characterized Rhone's GRS as elective surgery. The carrier further explained the rejection by stating "elective surgery is not covered by NYS Disability.

 

To support her claim Rhone had produced a series of letters from medical providers stating that she had Gender identity Disorder (GID), was working and living full time as a female, was responding well to hormone replacement therapy and was an excellent candidate for GRS. Read more.

medical benefits

Stress LabelMedical Benefits: Transgender Prevails in Wisconsin -- Psychological Treatment Significantly Related to Job Injury, Not to Preexisting Depression or Gender Identity Disorder, by Robin E. Kobayashi, JD.

 

Here's an interesting decision from the LexisNexis archives. In a 2005 decision, the Wisconsin Labor and Industry Review Commission affirmed the findings of the ALJ, who found that the applicant, an individual undergoing the process of changing her gender, was permanently totally disabled as a result of back injuries sustained in the course of her employment and not a viable candidate for employment under the "odd lot" doctrine, and that defendant was responsible for payment of psychological treatment related to applicant's chronic pain condition. Read more

Larson's spotlight: 5 recent cases you should know about

5 spotlightLarson'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. 

 

Tom Robinson thumbnail 

 

 

 > Read the summaries & court decisions.

 

1. AR: Second Injury Fund Allowed No Credit for VA Disability Benefits Received by Injured Worker

 

2. IA: Marina Employee Not an "Employee" Under Longshore Act-State Law Governs

 

3. IA: Trial Court, Not Workers' Compensation Commissioner, Has Jurisdiction to Hear Carrier's Claim to Recoup Benefits Procured Through Alleged Fraud

 

4. MO: Claimant May Subpoena Surveillance Videotape In Spite of 2005 Amendment to Statute

 

5. UT: Worker's Termination for Distributing Pornography to Co-Workers Does Not Disqualify Him From Continued Disability Benefits 

blogS at the lexisnexis workers' comp law community
Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/2/2011). Painter double dips by collecting benefits while painting.  Read it.
   
    
how to achieve medicare secondary payer compliance

 MSP Red CC 

The Complete Guide to Medicare Secondary Payer Compliance

Jennifer C. Jordan, Esq., Editor-in-Chief

To order, go to www.lexisnexis.com/Medicare.

 

Medicare Secondary Payer Compliance is an elusive area of law - tucked away in various public laws, statutes, regulations and CMS guidance materials.

 

Worse, many people don't realize that the CMS approval process for MSAs is voluntary-and carries an inherent cost.

 

That's why you need this all-in-one handbook ...

 

Authored by the leading expert in the field of the MSP, "The Complete Guide to Medicare Secondary Payer Compliance" is the only available resource written by an industry insider with a deep understanding and practical knowledge about this highly complex and evolving area of the law.

 

For the first time, you'll find all relevant pieces of the law in one accessible place. And by understanding what CMS wants-and why it wants it-you'll be better able to:

Take control of your insurance settlements

Avoid pitfalls, delays and penalties

Comply with reporting requirements

 

You'll also learn that CMS' preference may not be the only way to achieve MSP compliance.

 

Attorneys agree! This is the first comprehensive resource for achieving Medicare Secondary Payer Compliance.

  

"Ms. Jordan and her contributors provide concise, practical analysis of the multiple layers and nuances of Medical Secondary Payer compliance. The Guide is a valuable resource for plaintiff and defense counsel, as well as insurance carriers, employers, and third party administrators."

 

- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York. 

 

"The range of topics included in the book and updates is a beacon of wisdom in the confusing MSP compliance field."

 

- Tim Nay, Esq., Law Offices of Nay & Friedenberg, Portland, Oregon. Mr. Nay is a co-founder of the National Alliance of Medicare Set-Aside Professionals (NAMSAP). 

 

"I have a copy of Jennifer Jordan's book The Complete Guide to Medicare Secondary Payer Compliance and I am most impressed by same! I have recommended it to a number of attorneys here in Georgia."

 

- Richard C. Kissiah, Esq., Kissiah & Lay, Alpharetta, Georgia. 

 

"Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place."

 

- Brad Bleakney, Esq., Bleakney & Troiani. Read his complete review at Illinois Workers Compensation blog.
 

An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law." 

 

- Rebecca Shafer, JD, President, Amaxx Risk Solutions, Inc.

 
P1130 R12 cover

Implementation of the MMSEA reporting program is underway. Don't wait to order!

> Read more about the contents (1,350 pages). List Price: $179

Questions? Contact [email protected].


 

national news

Sedgwick CMS Acquires Assets of Cambridge Integrated Services Group, Inc.

A.M. Best Affirms Ratings of Eastern Insurance Holdings and Subsidiaries.

Eastern Insurance Holdings Announces Quarterly Dividend.

state news

AL: Legislature Passes Sweeping Anti-Illegal Immigrant Bill, Governor Expected to Sign.

CA: WCIRB President Robert Mike Announces Retirement.

CA: Assembly Approves Bill to Extend Benefits to Health Care Staff Workers.

CA: Assembly Passes AB 378 to Change Reimbursement Rates for Compound Drugs.

CA: Insurance Commissioner Appoints New Deputy Insurance Commissioner.

CA: Assembly Passes AB 335 Regarding Employee Notices.

CA: SB 684 Workers Comp Policy Transparency Bill Moves to Assembly Insurance Committee.

CO: New Report by Pinnacol Board Finds No Substantial Improprieties in its Business Practices.

CO: Governor Says Time to Consider Whether Pinnacol Should Be Fully Privatized.

FL: Governor Signs Bill to Crack Down on Pill Mills.

FL: Complexity Involved With Finality of Mediated Settlement Agreement for Injured Football Player.

IL: Bill to Overhaul Public Worker Pension Pulled.

IL: House Passes Workers Comp Reform on Second Try, Bill Sent to Governor.

IL: Insurer Group Presses for More Workers Comp Reforms.

IL: AIA Releases Statement on Passage of IL Workers Comp Reform Bill.

IL: Legislature Might Return for Summer to Tie Up Loose Ends Concerning Budget.

IL: Houses Passes Bill Requiring Release of Menard Prison Guard Workers Comp Tests.

IL: 2008 Rehab Study Questioned Carpal Tunnel Syndrome Injuries of Menard Prison Guards.

IN: 2011 Self-Insurance Guidelines and Application Posted.

LA: Court Approves $150.5M Settlement Against Coventry Subsidiary.

ME: Legislative Committee Votes to Confirm Two Men to Workers Comp Board.

MD: WCC Posts Reminder of Compliance for Appeals of Attorney Fee Awards.

MA: Impartial Physicians to Start Viewing Electronic Medical Records Starting 7/1/2011.

MI: Settlement Reached in High Heel Slip and Fall/Retaliation Lawsuit.

MO: MEM Refuses to Release Information on President's Salary, Bonuses.

MT: Governor Says Most Important Veto Was Striking Down 2.75 Percent Tax on Workers Comp Insurance.

NJ: NJCRIB Announces Changes to NJ Statistical Plan.

NY: WCB Chairman to Appoint Medical Advisory Committee.

NY: WCB Posts June 2011 Regulatory Agenda.

NC: House Passes Changes to Workers' Compensation System.

OH: BWC Establishes First Outpatient Prescription Drug Formulary.

OH: Senator Gillmor Seeks Position on Ohio Industrial Commission.

OK: Governor Vetoes SB 761, Would Have Increased Medical Rates.

OR: Court Rules Employee's Trip on Own Dog at Home Office Arose Out of Employment.

TN: Former Titan Football Player Settles Workers Comp Case for 5K.

TX: DWC Missouri Office Closes 7-5-2011.

VT: Governor Signs Single-Payer Health Care Reform Bill.

WA: Court Finds No Immunity for Design Professionals in Death of Sewage Treatment Plant Worker.

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medical benefits, continued...
MB 

The applicant suffered a work injury on 8/26/1997 while she tried to prevent a resident in the employer's group home from falling down some stairs. Following an MRI, a disc herniation was discovered, and a hemilaminectomy with disc excision was performed in the spring of 1998. The applicant recovered, and returned to work, but she was reinjured on 11/23/98 while trying to restrain a patient. An MRI showed degenerative changes, but not recurrent disc herniation. Nonetheless, the applicant remained symptomatic even after epidural steroid injections. Her doctors agreed she was not a candidate for further surgery.

 

With respect to applicant's treatment by mental health counselors, defendant contested its liability for some psychological treatment expense, arguing that applicant had pre-existing depression that was not caused or substantially exacerbated by the work injury.

 

The ALJ found that while applicant had a history of psychological treatment that preceded the work injury, i.e., she suffered from depression, underwent a 30-day hospitalization for treatment after her son was killed by a drunk driver and after her divorce, and she was in the process of changing her gender, which the medical reports suggested may be a psychological stressor, applicant's mental state is an "as is" condition, and she had suffered a significantly disabling work injury. More importantly, stated the ALJ, the evidence indicated that a significant portion of the expense applicant sought for counseling related to her work injury.

 

[Editor's Note: Administrative decisions, while not binding authority, help illustrate new trends in the law. Many of the cutting edge cases occur at the administrative level. Lexis.com subscribers can link to the Wisconsin decision here:  Potter v. Productive Living Systems Inc., 2005 WI Wrk. Comp. LEXIS 126.]

ENEWSLETTER ARCHIVES
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not work...report any linking problems to [email protected].

May 31, 2011: Cell Phone Distractions

http://archive.constantcontact.com/fs077/1102828640660/archive/1105697648150.html 

May 23, 2011: FECA Reform Proposals; Benefits Review Board Update

http://archive.constantcontact.com/fs077/1102828640660/archive/1105575780840.html

May 16, 2011: Full Face Transplant; Medical Foods; P&C Industry Trends

http://archive.constantcontact.com/fs077/1102828640660/archive/1105506640276.html 

May 9, 2011: State of the Line; Workers Comp Trends

http://archive.constantcontact.com/fs077/1102828640660/archive/1105406865560.html 

May 2, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105306219674.html 

April 25, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105243933380.html

April 18, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105151454598.html 

April 11, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105054845597.html 

April 4, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104945262995.html

March 28, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104894130984.html 

March 21, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104811663296.html 

March 14, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104742747659.html 

March 7, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104678900034.html 

February 28, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104610168211.html 

February 21, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104523576536.html 

February 14, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104442568785.html 

February 7, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104372668124.html 

January 31, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104299196240.html 

January 24, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104266393145.html 

January 17, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104223885217.html
January 10, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104176109384.html 

January 3, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104102646819.html 

 

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