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May 3 (Westlaw Journals) –  New York workers’ compensation laws bar claims brought by the families of two flight attendants killed in the crash of Continental Connection Flight 3407 in Buffalo, flight operator Colgan Air says.

In a motion and memorandum filed in the U.S. District Court for the Western District of New York, Colgan Air contends that the state’s workers’ compensation statutes prohibit the claims brought against it on behalf of the flight attendants.

The litigation stems from the February 2009 crash of Continental Connection Flight 3407 operated by Colgan.  The Bombardier Dash 8-Q400 plane was en route from Newark, N.J., to Buffalo.

As the aircraft approached Buffalo Niagara International Airport in icy conditions, the flight crew lost control of the plane.  The resulting crash killed everyone on board.

The lawsuits, which focus on the aircraft’s allegedly ineffective deicing equipment, allege Continental and Colgan negligently and recklessly operated and monitored the flight and allowed it to fly in hazardous weather.

Neil J. Prisco Jr. filed a wrongful-death action over the death of his wife, Donna, and Salvatore Poidomani filed a separate action over the death of his sister Matilda Quintero.

Both plaintiffs allege Colgan Air was negligent, careless, reckless and engaged in willful and wanton conduct.

Seeking dismissal, Colgan Air notes that neither complaint alleges the airline acted with intent to cause the flight attendants’ deaths.

The applicable workers’ compensation laws bar employees from pursuing claims against their employer unless the injury arose from an intentional wrong, the airline argues.

“A plaintiff can establish that a defendant committed an intentional wrong only by showing that the defendant either had an ‘actual intent’ or ‘subjective desire’ to injure,” the defendant says.

Because the plaintiffs make no such allegation, Colgan Air says it should be dismissed from the suits.

In re Air Crash Near Clarence Center, N.Y., on Feb. 12, 2009, No. 1:09-mc-02085, memo and motion to dismissfiled (W.D.N.Y. Apr. 8, 2011).

NEW YORK—A state appellate court has upheld the New York State Workers’ Compensation Board’s authority to assess financially healthy group self-insured trusts to pay for the liabilities of defaulted groups.

Last week’s decision by the 3rd Judicial Department of the Supreme Court’s Appellate Division in William Held Jr. vs. State of New York Workers’ Compensation Board stemmed from a 2008 lawsuit filed by self-insured group trusts, the ruling states.

They challenged the constitutionality of annual assessments imposed on them by the board.

Among other arguments, the plaintiffs contended that a workers comp law authorizing the board to assess all private self-insured employers when it is determined that an insolvent, self-insured employer may not meet its claims obligations does not apply to them. They argued the law does not apply to them because, as groups, they are not employers.

They also argued that the assessments amounted to an “unconstitutional taking.”

While a trial court agreed with the group trusts last year, the state appellate court disagreed. “There is no dispute that plaintiffs are self-insurers,” the appellate court ruled.

“The amounts of the assessments may have been unanticipated, but it cannot be said that their economic effect on plaintiffs rises to the level of a taking,” the court ruled. “While plaintiffs may be deprived of substantial amounts of money to pay the assessments, their liability is not made in a vacuum and directly depends on their proportional role in the self-insurance program and the workers compensation system.”

New York’s group self-insured trusts have faced a financial crisis since 2006. Since then, several have closed voluntarily while others became insolvent.

Utilization Review Software for Workers’ Compensation Will Integrate Reed Group’s MDGuidelines With New York Treatment Guidelines & ACOEM portion of California MTUS Guidelines

DecisionUR (DUR) announced today that its web-based workers’ compensation utilization review software will now include the New York Treatment Guidelines as well as the ACOEM portion of the California MTUS treatment guidelines.

DecisionUR will integrate Reed Group’s MDGuidelines With New York Treatment Guidelines, which contains both proprietary licensed content from ACOEM (American College of Environmental and Occupational Medicine) as well as Reed Group’s proprietary data crosswalks that allow navigation of the New York Guidelines by CPT (medical procedure) and ICD (diagnostic) codes. DUR also will incorporate the ACOEM content of the California MTUS.

Reed Group’s MDGuidelines navigation software is used by the New York State Workers’ Compensation Board and is the only product on the market that is licensed to distribute the ACOEM portion of the New York Treatment Guidelines.

DecisionUR’s software “pre-scrubs” workers’ compensation claims to ensure they qualify with medical treatment guidelines. By automating the application of specific, proven medical protocols, DUR is a highly effective cost-containment tool, offering users flexible pricing by transaction or licensing.

“Integrating MDGuidelines With New York Treatment Guidelines makes DecisionUR the must-have utilization product for anyone working in the New York workers’ comp industry,” says DecisionUR Medical Director Lester Sacks, MD. “Reed Group’s MDGuidelines makes it easy to navigate the New York Treatment Guidelines and ACOEM content for MTUS. We’re very pleased to offer the power of their content and search tools to our customers.”

“DecisionUR is an essential tool for the cost-effective adoption of state guidelines,” says Jon Seymour, MD, president, guidelines, for Reed Group. “We’re excited to offer integration of MDGuidelines with DUR’s excellent software and, thereby, make adoption of state treatment guidelines easier for all workers’ comp stakeholders.”

DecisionUR’s software is used by payors, providers, third-party administrators (TPAs) independent review organizations (IRAs), utilization review organizations (URAs) and other stakeholders throughout the workers’ compensation industry.

For more information, please visit http://www.DecisionUR.com.

About DecisionUR
DecisionUR is a web-based utilization review platform with API connections and is HIPAA compliant. The software’s flexibility allows connectivity with billling review companies and is robust for managing the automated review process built around ICD diagnostic coding and CPT procedural coding. The software allows individual client protocols and jurisdictional compliance. More information at http://www.decisionUR.com.

About Reed Group®
Reed Group® is the world’s most trusted source of return-to-work information, helping companies improve employee absence outcomes. Reed Group’s data, tools, customized solutions, and case management services help reduce absence incidence and duration, and get employees back to normal, healthy lives and full productivity. Reed Group is headquartered in Westminster, Colorado. More information at http://www.reedgroup.com and http://www.mdguidelines.com.

(AP) – 2 days ago

NEW YORK (AP) — A judge has dismissed a former TV news staffer’s pioneering lawsuit over bedbug bites she got at her New York City office.

Jane Clark’s lawyer said Friday she planned to appeal the ruling.

Clark says bedbug bites at work forced her to leave her Fox News job in 2008. The company’s exterminators found that the bugs were coming from another former employee’s infested apartment.

Clark sued the building’s landlord, among others, though not Fox.

A judge ruled last week that Fox News “took extraordinary measures” to fight the bugs, and building owners and managers couldn’t have done more.

The landlord’s lawyer and a spokeswoman for Fox parent News Corp. didn’t immediately return calls Friday seeking comment.

The judge said the case apparently marked the first time a worker sued an employer’s landlord over bedbugs.

Copyright © 2011 The Associated Press. All rights reserved.

The relationship between physician and patient is one of the oldest and most protected bonds. However, in the often complicated situation of treating an occupational illness or injury, the private relationship becomes more public with the additional agendas of an employer and an administrator. Keeping the ultimate goal of improving patients’ conditions in mind can carry physicians through the ethical considerations.

When presented with a workers’ compensation case, every physician should familiarize him or herself with the forms and regulations for treatment of occupational illnesses and injuries in the state in which the condition developed, as well as the state in which treatment will occur, should the two be different. Clear communication with all parties involved in the cases, an evidence-based treatment plan and a realistic prognosis will ensure the best outcome for the patient, regarding employment and health.

The Guidelines

As re-establishing a functional ability is the primary goal for workers’ compensation cases, using a series of objective measures to track progress removes the chance for personal bias. Physicians should watch for decline or improvement in ability to perform daily living activities, cognitive and psychological behavior, range of motion, stamina and strength through a follow-up visit every two to three weeks.

While the patient’s experience of pain should be documented, it should not singularly determine the length of his or her leave or type of treatment. In setting a patient’s return-to-work date, physicians should utilize resources such as the Medical Disability Advisor and the Official Disability Guidelines. Adhering strictly to personal opinion or patient requests can jeopardize a patient’s employment status and put the employer in the dark regarding its employee’s condition. Also, the American Medical Association’s book The Physician’s Guide to Return to Work offers body system-specific treatment plans and case-by-case examples for effective negotiations.

Paperwork 101

States require different forms to communicate among the three to four parties involved and document the varying stages of treatment. The standard paperwork typically includes a first report detailing the physician’s initial examination and course of action, progress reports that record any major change in condition or treatment proposal and a final report that makes a definitive determination about the nature of the illness or injury.

Most documents are extremely time sensitive and have implications for a physician’s reimbursement, as well as an employer’s planning and a patient’s future employment.

Upping Fees to Cut Costs

A persistent stumbling block for the proliferation of quality physician care and occupational health programs is the low fee schedules associated with physician reimbursement. However, the American College of Occupational and Environmental Medicine (ACOEM) is supporting a movement to realign the schedule with a “pay for performance” philosophy. The organization argues that offering higher reimbursement levels, in addition to requiring the adoption of its Occupational Medicine Practice Guidelines, will grow the number of physicians providing care for workers’ compensation cases and enhance the patient outcomes as physicians will be following guidelines for treatment drafted on the latest scientific studies. ACOEM guidelines have already provided the standards for California and New York state policies and include measures for preventive medicine to head off complications resulting from an occupational illness or injury.

MD News April 2011