The National Workers’

Compensation Institute By: James N. McConnaughhay, General Chair

National Workers‟ Compensation Educational Conference

There is exciting news to share as we enter 2012. For 25 years the Florida Workers‟ Compensation Institute

has presented the Workers‟ Compensation Educational Conference in Orlando. In that time we have grown

from some 200 attendees and no exhibitors to over 8,000 attendees and hundreds of exhibitors. That

phenomenal growth has allowed us to continually reach out to more audiences, sponsors, speakers, and

participants. The Conference has evolved into a national presence, attracting national organizations, national

speakers, and attendees from across the country.

Today, I am proud to announce that we are a truly

national conference, and a name change and other

initiatives in 2012 will reflect that. While FWCI will

continue as a state-specific organization, we have

created the National Workers‟ Compensation Institute

(NWCI) as an umbrella organization, and have

formally renamed the conference the National

Workers„ Compensation Educational Conference

(NWCEC).

A major part of our rebranding efforts will be the

launch of a NWCI website this spring. The site will be

the main source of information on the annual

conference and also serve as a resource for all things

workers‟ comp. This is a massive task and was

undertaken only after a great deal of thought and

discussion. The new website and the entire rebranding

process reflect our commitment to orient the

conference toward a more national audience and to offer an increasingly dynamic forum for presenters and

attendees.

We are not forgetting our roots, however. Orlando will remain the home base for our annual conference; we

are already booked at the Orlando World Center Marriott through 2014. FWCI will continue to be the premier

resource for those of you seeking Florida-specific workers‟ compensation educational opportunities.

We already are hard at work building the new site and gathering content. Joan Collier, the former editor-in-

chief of Florida Underwriter, is our online communications officer. For those of you who would like to

contribute material (articles, slideshows, PowerPoint), she has developed the editorial guidelines (see page 27).

I encourage you to contact her and talk over your ideas.

FWCI Board Members, J. David Parrish, Entertainment Chair,

Steve Rissman, Program Chair, Gerry Rosenthal, Vendor

Chair, and Jim McConnaughhay, General Chair.

FWCI Hall of Fame Announced!

By: Steve Rissman, Program Chair and President

Florida Workers‟ Compensation Institute Hall of Fame

National Workers‟ Compensation Educational Conference

FWCI has recognized that there are a lot of individuals who have made the Florida workers' compensation

system work. In response to that, the Institute decided to sponsor a Workers' Compensation Hall of Fame

effective January 2012. In order to be elected to the Workers' Compensation Hall of Fame, an individual had to

devote an entire career to the betterment of the workers' compensation system. Individuals from industry,

attorneys and judges were all eligible for nomination and election.

Eighteen individuals were elected to the charter class of the Workers' Compensation Hall of Fame. An

induction dinner was held on January 13, 2012 for the 18 recipients. The members elected representing injured

workers were: David Parrish, Gerry Rosenthal, Richard Sicking, Ray Malca, Dan Hightower and Glen

Wieland. The members elected representing employers and carriers were Jim McConnaughhay, Al Frierson,

Steve Rissman, George Kagan, Steve Kronenberg and Tom Conroy. The members elected representing the

judiciary were: Judge John Lazzara, Judge Stephen Rosen and Deputy Chief Judge David Langham. The

members representing industry were: Joe Keene from FCCI and Bob O'Halloran from Summit‟s Claims

Center. Stewart Colling was elected to the charter class posthumously. At the meeting and induction, Steve

Rissman was elected President of the organization.

In addition to devoting ones entire career to making the workers' compensation system better, the elected

individuals had to have something more. The plaques that were awarded to the elected individuals say it best:

"In appreciation for devoting their distinguished career to the betterment of the workers'

compensation system in the State of Florida and for providing leadership, dedication and

service to advance the highest philosophy and practice of workers' compensation."

There really can be no question or debate

about the qualifications of the individuals

elected to the charter class. All of them

have noteworthy and spectacular personal

qualifications. Some are claimants' lawyers

and some are defense lawyers. Three are

judges of compensation claims and two are

among the giants of industry.

In order to be elected to the Workers'

Compensation Hall of Fame, a nominee

must receive 75% of the vote of the active

members. The charter class was

unanimously elected by the Board of

Directors of the Florida Workers'

Compensation Institute. In all subsequent

years, it will be the members, rather than the

Board of Directors that vote.

It is the intention of the Hall of Fame to

create - next year - a wing of the Hall of

Fame dedicated to those whose broad

shoulders established the workers'

(Back Row, L-R), Hon. John Lazzara, Hon. Steve Rosen, J. David

Parrish, Jim McConnaughhay, Steve Rissman, Dan Hightower, George

Kagan, Joseph Keene, Glen Wieland, Steve Kronenberg, (Front Row, L-

R) Hon. David Langham, Ray Malca, Tom Conroy Gerry Rosenthal, Bob

O‟Halloran, (not pictured) Al Frierson and Richard Sicking.

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compensation in the 1950s, 1960s and 1970s. In order to be nominated for that wing of the Hall of Fame, one

has to be retired entirely from the field of workers' compensation. Naturally, for this wing of the Hall of Fame,

a deceased individual can be nominated and elected.

The members of the Hall of Fame hope that this organization will shine a positive spotlight on what is good

and positive about the workers' compensation system. In subsequent articles in this Newsletter, and upcoming

issues, the 18 individuals of the charter class will be profiled.

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 “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.

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FWCI Hall of Fame Inducts Tom

Conroy, Esq.

Tom Conroy was born in Jersey City, New Jersey in 1949. In 1953 he and his

family moved to Lancaster, Pennsylvania where Tom completed his high school

education. After high school Tom attended the University of Miami and majored in

Politics and Public Affairs. Tom graduated from the University of Miami with a

B.B.A. in 1971. Tom moved upstate to attend Florida State University, receiving his

Juris Doctor from that institution in 1974.

Since his admission to the Florida Bar in 1974, he has specialized in the defense of

workers' compensation claims. Initially employed as house counsel for a major

insurance company, Tom went on to become an assistant city attorney for the City of

Miami. In this position, he began to acquire an expertise concerning the problems

unique to municipalities and self-insured's.

Tom Conroy and Bruce Simberg founded the firm Conroy & Simberg, P.A. in 1979 and Tom continued to

specialize in workers' compensation defense. During the years Tom was a partner at the firm, the firm grew

from having two founding partners to a firm comprised of over 140 attorneys in eight locations throughout the

state of Florida. When board certification in workers' compensation was started in 1988, Tom passed the

examination and remained board certified until his retirement in 2008. From 2004 through 2008, the South

Florida Legal Guide recognized Tom as one of South Florida's Leading Attorneys and he has also been named a

"Florida Super Lawyer" in that yearly publication. Tom has tried cases before Judges of Compensation Claims

throughout the State of Florida. In addition, he has argued before the Industrial Relations Commission, The

First District Court of Appeals and the Florida Supreme Court.

Prior to his retirement, Tom was a member of the American Bar Association, the Dade County Bar

Association, the Broward County Bar Association and the Palm Beach County Bar Association. He was also a

member of the Defense Research Institute and has emeritus status on the Workers' Compensation Executive

Council on which he served as its chair from August 2006 to

August 2007. He has served as a trustee and as president of the

Friends of 440. Tom is proud to be among those initially

involved in the Friends of 440 Scholarship Fund and continues

to serve on the Board of that organization.

Tom is now retired and lives with his wife, Michelle, in

Henderson, Nevada. He enjoys retired life and spends time

exercising and hiking in both the mountains and the desert.

Tom also enjoys the excellent dining and shows that Las Vegas

has to offer and is known to occasionally drop into a casino to

make a wager. He considers himself fortunate to have fallen

upon the practice of workers compensation law, a field which

he barely even knew existed when he graduated from law

school. Tom says, "To me, Workers' Compensation is the best

area of practice that I could have possibly found. The

practitioners are extremely knowledgeable and the Judges are

competent to deal with any problem and any case presented to them. The mediators are excellent at facilitating

resolutions to allow the system to function without enormous backlogs. The most surprising thing about comp

was that I could argue with my opponents and my competitors during the day but still feel comfortable to

socialize with them at night. Because of that I count many of my legal adversaries as close friends. I am not sure

this is the case in other practice areas."

NWCI General Chair Jim McConnaughhay, Tom

Conroy, and NWCI Program Chair and Hall of

Fame President Steve Rissman at the Hall of Fame

Inductions, January 13, 2012.

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The Way It Was By: Stephen L. Rosen, Judge of Compensation Claims, St. Petersburg

When asked to write about the practice of Workers Compensation in the Tampa Bay

area during the period of my early practice until December 31, 1993, I thought it

would be a fun trip down memory lane. And it was...

I took the Florida Bar examination in February of 1974 and started going through

the phone book to contact law firms to find a job. It didn't matter which area of law; I

just needed a job.

After only one day of searching, I was hired by the law firm of Marlow, Mitzel and

Ortmayer, based out of Miami with a Tampa office, handling personal injury and

Workman‟s Compensation (the former name of the law used only once in this article)

defense. I was assigned to the Workers Compensation department which was,

basically, me at that time.

I have broken my time as a Workers Compensation practitioner into two 19 year eras: the first, about which I

reminisce, is from 1974 to December 31, 1993 which I refer to as the "Golden Era of Workers Compensation

Practice." The second, which began January 1, 1994 with the effective date of drastically new amendments to

chapter 440, I refer to as "The Era to Be Named Later."

In Tampa up to 1993, the Comp judges in Tampa were Tom Miller, Daniel Gallagher, Louis Tidwell, CJ

Hardee, William D. Douglas, Kathleen R. Hudson, John Lazzara (still a JCC in Tallahassee), and Joseph

Murphy (still on the bench in Tampa). In St. Petersburg, the Comp judges were Richard Davis , Barry Salzman,

Stephen Masterson, Stephen Everhart, James T. Earle, Jr, Gary Frazier, Jonathan Alpert, Joe Willis, Ann

Robbins and Donna Remsnyder (currently administrative judge in St. Petersburg). In Lakeland, Leonard

Blanker was the Comp judge followed by Charles Hurt and Charles Vocelle. The Tampa office was located on

Twiggs street near the County Courthouse. The St. Petersburg office was on Mirror Lake Dr. and the Lakeland

office was on Lake Hollingsworth.

Upon becoming a member of the Florida Bar, I was immediately thrust into the litigation arena in Workers

Compensation. Hearings were not automatically set when a Petition for Benefits was filed. Claimant's attorney's

would have to file a Request For Hearing, a one page letter sized

form, and then the JCC would set the hearing, Pre hearings were

not mandatory and you could have the fun of trial by ambush.

Witness lists were not always required, and the attorneys had to

actually talk to each other to coordinate the final hearing.

In the 1970s and into the 1980s, many of the Workers

Compensation practitioners learned to handle personal injury cases,

both plaintiff and defense, having gotten a head start because of

their vast background in medical/legal issues they faced in Workers

Compensation. Many members of the Florida legislature were

experienced Workers Compensation practitioners in the Tampa Bay

area including such lawmakers as T. Terrell Sessums, Louis de la

Parte, H. Lee Moffitt, Tom J. Johnson, and Elvin Martinez. A

number of Circuit and County court judges had started off as

Workers Compensation lawyers or judges. When Workers

Compensation issues came up in other forums, it was not a voodoo

issue; the powers that be were knowledgeable about Workers

Compensation. It wasn't just another form of insurance. When

legislative reform was on the table (which it seemed to be every

year from 1973 to 1993) in the Florida legislature, many

committee members were actually Workers Compensation

practitioners who knew the ins and outs of the system.

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When speaking about access to the legislature and Workers Compensation reforms, one name stands above all

in the Tampa Bay area, if not the entire state, as the "go to gal" regarding proposed legislation: that would be

Mary Ann Stiles, the universally acknowledged "Queen of Comp." Ms. Stiles, of all the lawyers who practiced

Workers Compensation in the Tampa Bay area, was the most involved in minimal and significant changes to the

law during the "Golden Era". In the 1970s and for the rest of that era to 1993, lawyers from around the state

such as Jim Mcconnaughhay, Steve Rissman, Gerry Rosenthal, Barry Keyfetz, E. J. Davis, Richard Sicking, J.

Mason Wines, Ray Malca, Barry Salzman, Mick O'Brien, Bill Douglas, Bud Adams, Al Frierson, David

Parrish, John Kest, David Roemer, Peter Burkert, Tom Koval, Richard Sadow and maybe even myself spent

countless hours in Tallahassee educating the lawmakers on the pros and cons (mostly) of proposed Workers

Compensation reforms. But, legislatively, Ms. Stiles stood above the rest in this writer‟s opinion.

Workers compensation was the type of practice at that time in which the experienced lawyers, claimant and

defense, would educate younger lawyers to keep them in the system. These lawyers worked hard for their

clients and wanted to win cases as badly then as lawyers do now. However, it did not seem that winning was

everything; you didn't make a lot of money per case on either side of the table, but you had a lot of cases. It was

clearly a volume practice rather than an attempt to squeeze every dollar out of every case. Attorneys fees

hearings were a rarity. There was really no such thing as "case costs." Judges could speak freely to lawyers on

or off the record without fear of complaint to some nominating committee. At that time, a sitting Comp judge

who was recommended for reappointment by the local nominating committee was automatically reappointed by

the current Governor who was required by statute to reappoint, basically without question, the sitting Comp

judge who was recommended by the nominating committee.

As a young defense attorney, the claimant‟s attorneys worked hard to develop a rapport with me rather than to

take me to the cleaners. They were so gentlemanly and smooth that I hardly felt the knife going in. And, then, it

was only the tip of the knife rather than pushing it through to my heart.

In 1979, the Legislature passed a compensation system for injured workers known as "Wage Loss." If the

Workers Compensation system was a rock 'n roll band at that time it would have been named "Widespread

Panic". But after four years of struggle, the "Golden Era" righted itself. In the Tampa Bay area, claimant and

defense lawyers took appeals on excellent issues which laid the groundwork for the ultimate decisions by the

appellate courts to clarify the new compensation system.

Prior to the 1979 amendments, the appellate court for Workers Compensation claims was a court dedicated

solely to workers compensation claims known as the Industrial Relations Commission. Led into the "Golden

Era" by Steve Slepin and Leonard Carson, this appellate court made many significant decisions in the

interpretation of the workers compensation law. Oral arguments were held on Monday, Tuesday, and

Wednesday in Tallahassee on the first two weeks of the

month. When you went up to Tallahassee for argument,

one would meet with comp lawyers from all over the

state and it was quite a friendly affair. Other members

of the court, at one time or another into 1979, included

Elmer Friday, Leander Shaw, Winifred Wentworth,

and Burnis Coleman. In 1979, this appellate body was

abolished and Workers Compensation appeals fell

within the jurisdiction of the First District Court Of

Appeal where it still lies. That court grew immediately

in size because it received about 1000 Workers

Compensation appeals as soon as the 1979

amendments became effective.

There are so many names to recall. If you practiced

in Tampa, then you probably also practiced Workers

Compensation law in Lakeland and St. Petersburg. If

you practiced in Tampa or St. Petersburg, you probably

went to Bradenton and Sarasota. Some of the

names of the skilled practitioners in the

Tampa Bay area to whom a young lawyer

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could look to for guidance were Ric Mitzel, Joe Barrs, Joe Melendi, Steve and Terrell Sessums, Dal Albritton,

Bill and Paul Kaleel, Peter Behuniak, Guy Perenich, Bob Carroll, Joe Thury, Rodney Durrance, Richard

Crooke, Richard Senty, Frank May, Walter Crumbley, Calvin Pope, John Williamson, Bill Douglas, Cliff

Howell, Marvin B. Woods, Chester Skipper, Del Arduengo, Dan Burton Phil Rogers, Mason Wines, Bill Blake,

James B. Thompson, Jerry O'Riordan , Billy Rowe, Joe Carey, Jimmy "The Jet" Thompson (Tampa), Ray

Tavares, Sy Honig, Dick Valeri, Eugene (Gene) Harris, Bill Switalsky, John Chilldon, Bob Mann, George

Meros, and David Williams to name a few.

And then there were my peers of age in the Tampa-St. Petersburg-Lakeland-Sarasota-Bradenton area who

entered the "Golden Era" about the same time as I did: Jim Smith, John Shofi, Ivan Matusek, John Kaylor, John

G. Thompson, John H. Thompson, Jim Delesie, Bill Levens, Tom Cassidy, Mike Murphy, H. Guy Smith, Bob

Byelick, Charlie McQuillan, Harry Goodhart, Mark Hungate, Keith Mann, Mike Meksraitis, Larry Samaha, Jim

Jones, Mike Haworth, Alex Lancaster, Robert Todd, George Cappy, Larry Beltz, Scott Brasfield, Don

Anderson, John Kaylor, John McFadyen, “Big” Jim Clark, Richard Bokor, Bill Holt, Wayne Myers, Judge Tom

McGrady, Doug Spangler, Gary Frazier, Tom Masterson, Jake Smith and a host of young lawyers in the Tampa

Bay area who picked up the torch of the Workers Compensation practice.

Of course, in addition to Ms. Stiles, other ladies entered the Workers Comp arena as formidable litigators in

the Tampa Bay area: Nancy Cavey, Dawn Hayes, Rosemary Eure, Janet Jaspers Poluse, Ellen Lorenzen, and

Gwynne Young (current President-Elect of The Florida Bar).

However, in the Tampa Bay Workers Compensation arena, James T. Earle, Sr. deserves special mention. In a

40-plus year career over the 1960s, 1970s, 1980s, and 1990s, Mr. Earle made his mark as a defense attorney but

also represented many claimants in excellent fashion. In the 1970s, he decided that he was going to hire lawyers

who worked for the Special Disability Fund in Tallahassee since the Fund was a great source of return revenue

to insurance companies because the employer hired an employee with a pre-existing disability. So, many new

lawyers came in to the Tampa Bay area because of Mr. Earle. During his practice time, Mr. Earle trained nearly

two dozen superior lawyers, including his son, Jimmy, Jr., who went on to represent both employer/carriers and

claimants during the course of their practices. Mr. Earle had a favorite term that began with the word "sum” and

ended with a word referring to a female dog. It didn't matter if it was a doctor, lawyer, judge, legislator,

insurance adjuster, claimant or employer---Mr. Earle used his term of endearment indiscriminately. After Mr.

Earle passed away, Bill Douglas, while he was a Judge of Compensation Claims, kept a picture of Mr. Earle in

his office that depicted Mr. Earle irreverently indicating that everybody looking at the picture was "number one"

in his book... no human being, however self-important, avoided Mr. Earle's opinion.

There were some "larger than life" claimant and defense lawyers in the Tampa Bay area and the Workers

Compensation litigation system ran smoothly because all of the lawyers knew each other and were able to

accomplish excellent representation for their respective clients through the cutting of corners and getting to the

chase. It was a very professional practice and the Florida Bar would never have had to amend its oath of

attorney to include professionalism with these lawyers. We beat each other up between nine and five and it

rarely became personal. Once the closing bell rang, it was common to spend time together after hours simply as

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a group of Workers Compensation practitioners.

In many ways, the Workers Compensation litigation system has become bigger and better, as well as bigger

and worse, but to have practiced in the "Golden Era" in Tampa Bay brings back fond memories that can never

be taken away. To those of you whose names I inadvertently left out, I apologize. To those of you who helped

me out with the depth of your memories, many thanks.

FWCI Hall of Fame Inducts Daniel

Hightower, Esq. Daniel L. Hightower graduated from Stetson Law School

in 1973 and has been practicing law in Ocala since then. He

began his professional career by joining a law firm in Ocala

where he served for 14 years, and in 1987 he opened Daniel

L. Hightower, P.A., Lawyer. Dan has served as a part-time

Assistant State Attorney, President of the Marion County

Bar Association, and Chairman of the Marion County

Grievance Committee of The Florida Bar. In 1988, he was

appointed by Governor Bob Martinez to the Fifth Judicial

Circuit Nominating Commission and in 2011, he was

awarded The Florida Bar President‟s Pro Bono Service

Award at The Florida Supreme Court for legal services

provided to people who are unable to afford a lawyer. Dan

holds an AV® Preeminant™ rating from the Martindale

Hubbell Peer Review, which is the highest level attainable

by an attorney and represents the highest level of skill and

integrity. He has actively practiced in the areas of workers

compensation, personal injury and wrongful death since

1976.

WCEC A Partnership Between

NWCI General Chair Jim McConnaughhay, Dan

Hightower, and NWCI Program Chair and Hall of

Fame President Steve Rissman at the Hall of Fame

Inductions, January 13, 2012.

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What is going to Happen

in Workers‟

Compensation This Year?

By: Joe Paduda

There's a lot happening in the work comp industry: a hardening market; frequency ticking up;

consolidation/mergers/acquisitions and buyouts (“M&A”); legislative and regulatory changes; and management

moves. And all this against the backdrop of a very big election year.

So here's what I'm going to be watching for.

1. Health reform will impact workers comp.

I have no idea what the Supremes will do when they rule on the constitutionality of the PPACA, aka health

reform bill. Their ruling could kill the law, leave it alone, or eliminate the individual mandate. But no matter

what the official decision is, the health financing and delivery industries have changed dramatically over the last

two years, and that change will only accelerate over the next two. The rapid consolidation of health care

providers, growth (via acquisition) of delivery systems, and acquisition of providers and provider-based

managed care plans by payers is changing the landscape, as is the expansion of Medicaid. Health plans KNOW

they have to change their models, get bigger, invest billions in technology and solidify and strengthen

relationships with providers, regardless of whether reform survives or not. All health plans are very tightly

focused on those strategic imperatives. As a result workers comp, long a sideline, has been relegated to a

position of insignificance, with one exception - Anthem. I'd expect to see the Big Blue continue to expand their

work comp presence, but they'll be the only one to keep pushing. The rest are too busy worrying about the 98%

of the business that is group, Medicare and Medicaid. For comp, network discounts will diminish, That doesn't

mean medical costs will increase, as discounts don't always, or even most of the time, equal savings. Network

options will change, and we'll see more piece-mealing of networks as other payers follow the lead of

Broadspire and now ESIS and diversify their network relationships.

2. M&A (Mergers and Acquisitions) in comp is going to accelerate.

There was a lot last year, but 2012 is going to be the year of the deal. With the pending changes in capital gains

slated to kick in a year from now, several private equity-owned companies getting well past the three year

horizon (and a couple past five), some long-time entrepreneurs looking to ride off into the sunset, and what

appears to be an uptick in valuations, it's a no-brainer.

3. Comp rates will go up.

Well, this already started, but it bears repeating. After a way-too-long soft market, it's about time pricing sanity

returned. Higher work comp premium rates will drive business to TPAs, encourage risk managers to, well,

actually manage work comp risks, increase vendor business (think UR/case management, PT, bill review, and

networks) and generally help all of us in the industry.

4. Attacking opioid addiction and dependency will hit the top of many payers', regulators', and

Employers' agendas.

Led by reports and publicity from notables including Gary Franklin, Medical Director of Washington

State's work comp fund, Alex Swedlow of CWCI, WCRI and NCCI, there's been a tremendous

awakening among stakeholders to the human and financial cost of opioid abuse in workers‟ comp.

The quicker payers are already moving from "oh my it's a big problem" to "here's the plan to fix it."

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It's about time. The damage caused by rampant over-prescribing of opioids is immeasurable. Devastated

families, dead claimants, rising insurance premiums, increased crime, completely unnecessary disability and

higher costs for employers and taxpayers are the result. Identification of claimants at high risk for addiction

and treatment of those individuals must - must be a priority. Intelligent payers will stop ignoring the

problem or hoping it will go away, and work to a) prevent more overuse and b) help those already

addicted/dependent to get healthy.

5. Now that Illinois is starting to approve Preferred Provider Programs, there will be lots of interest

followed by disappointment that they really don't do much to control over-utilization.

I know, this is a gimme. The good folk at the Illinois Department of Insurance have been forced to come up

with regulations to implement legislation that is about as convoluted as it could possibly be. Unfortunately,

claimants who are interested in gaming the system will use the loopholes in the PPP system to get what they

want when they want it from the providers they want to get it from. The PPP will only really work for claimants

who weren't interested in gaming the system. Unfortunately the PPP isn't much of a solution.

6. As work comp premiums begin to rise, we're going to see a renewed interest in loss control, risk

management, and medical management.

With rate increases coming in California, Florida, and Massachusetts (among other states), employers are going

to have to dust off those yellowed risk management plans, recall the basics of loss prevention, and perhaps re-

hire the loss control pros they laid off over the last few years when their services weren't 'needed'. Look for the

big consulting houses, and smaller boutique firms, to emphasize their loss control expertise and capabilities;

mono-line (and heavily-workcomp-focused) carriers will also tout their knowledge and ability to help

employers control comp program costs.

7. The physician dispensing cost control bill currently pending in Florida will pass.

After several years of political intrigue, huge campaign contributions from companies making enormous profits

from physician dispensing, and continual efforts by good actors in the system, outraged taxpayers and

employers will finally succeed in limiting reimbursement for drugs dispensed by docs to the original underlying

price of the non-repackaged drug. I hope. And so should you. That won't' be the end of the issue; Maryland,

South Carolina, and other states are also battling to limit this latest and greatest abuse of the comp

system. Even if we win in Florida, there will be many more battles ahead.

8. More payers will diversify their provider network partners.

As Aetna winds up its work comp network operation, payers' interest in exploring other network options will

increase. Following the lead of Broadspire and ESIS and enabled by technology that makes it easier than

ever to mix and match provider networks, we'll see several other large payers award more network business

to more network companies. Expect firms such as Anthem, HFN, Horizon, Cofinity, Rockport and Prime to

gain share. That doesn't mean anyone should count Coventry out. They are the oldest, largest, and most

entrenched, and are working hard to address network gaps that will arise when their relationship with Aetna

finally ends (which is still a long way away).

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9. York Claims will finish the year well on its way to becoming a top-tier TPA.

Through savvy deal-making, a pretty intelligent sales approach, and what is by several accounts a strong

focus on doing the right thing for the employer (and not just generating fees for York), York has transformed

itself from what was a not-very-good TPA a decade ago to a well-regarded and very well run organization.

York's robust technology and strong market share in key sectors (especially governmental entities in several

states), coupled with the expertise they've added as a result of acquisition (I'm especially impressed with the

JI Companies deal) bodes well for their future. Perhaps I should modify the headline - York already is a top

tier TPA in terms of capabilities; these capabilities will drive them towards the top tier in terms of revenue

and market share.

10. Oklahoma will eliminate the requirement that all employers have workers comp insurance. There are

moves afoot in several states to reconsider the work comp mandate, but none have more traction than the one in

OK. Whether it's because they share a long border with the only state that doesn't require comp (Texas), many

of their larger employers also have big operations in Texas and like the opt-out there, or there's something more

ephemeral, a sense that work comp as currently constructed doesn't work the way it should anymore, Oklahoma

may well be the next state to allow employers to opt out. There's already a study group authorized by the

State Senate that's looking into the feasibility of the change; their findings should be released in the next

few weeks. That will be just in time for the next legislative session which starts in February. This may not

become law in 2012, but I'd expect some movement that allows some employers to opt out, perhaps in a pilot

program as early as next year. Well, there we have it. Oh, there's one more . . .

11. My annual April Fool's post will generate some controversy, tick off a few people, and generally cause

consternation among those who either don't have a sense of humor or can't read a calendar. It will also not get

me in as much hot water as some others because I have to vet it through my PR department...

__________ Joseph Paduda is a nationally recognized expert, speaker, media source and author on managed care in group health and

in workers‟ compensation. He translates complex data into actionable knowledge and is able to take an aerial view or to

drill down into intricate niches.

His practical approach and 20 plus years experience in the field give clients precise direction and applicable programs.

He writes the popular weblog Managed Care Matters attracting more than 1500 unique visitors a day and a good deal of

comment in the health care world. His blogs are frequently republished on other sites. Mr. Paduda also conducts industry

surveys, including focused on managing pharmacy costs within workers‟ compensation, bill review in workers‟ comp, and

work comp claims systems.

Prior to founding Health Strategy Associates in 1997, Mr. Paduda served in sales, marketing and management positions

with managed care and insurance companies, including MetraComp, a United Health Care Company, Travelers Health

Company, Liberty Mutual and American International Healthcare/AIG.

A frequent speaker and prolific author, Mr. Paduda has appeared on ABC‟s Nightline, Fox Business News,

AirAmerica, and NPR and been featured in The New York Times, LA Times, TheStreet.com and many industry

publications.

Editor’s Note: Joe Paduda‟s predictions fail to mention one critical prediction for 2012. We predict that Joe

Paduda will appear at the 2012 NWCI Educational Conference in August as a keynote Speaker. Watch for the

complete program and registration materials coming soon. Do not miss the chance to hear this speaker!

Mark Your Calendars NOW!

WCEC 2012, August 19-22, 2012 - Marriott World Center, Orlando

WCEC 2013, August 18-21, 2013 - Marriott World Center, Orlando

WCEC 2014, August 17-20, 2014 - Marriott World Center, Orlando 11

FWCI Hall of Fame Inducts Joseph

A. Keene Joseph A. Keene initiated his career by attending the University of Massachusetts in

the early 1960‟s and going into the pizza business there until mid 1966. At that point

he went into food management with Howard Johnsons and McDonalds until late 1967

when he was offered a job with Liberty Mutual as an adjuster trainee. Joe was an

adjuster with Liberty through the early days of no fault and stayed there until 1972

when he relocated to Florida.

Joe Keene then went to work as a Resident Senior Adjuster for the Insurance

Company of North America and handled all lines of insurance including workers‟

comp. In 1976 Joe was offered a Claim Supervisor position with Crum & Forster at

which time he interacted with most of the members of the Workers‟ Compensation Hall of Fame. In late 1977

Joe went to work for Frank B. Hall as a Claim Supervisor and was promoted to Vice President of Claims. Joe

then filed a program for the Kentucky AGC and the Virginia Municipal League self insurance funds. In 1981

he was hired to initiate a claims department for the Florida Roofers Association where he stayed until 1985

when he was asked to do the same thing for Combined Risk Insurance Management (CRIMS). In 1989 Joe

went into business for himself and formed Claims Capabilities, Inc. (CCI), handling self insurance funds and

insurance companies. Joe also consulted for many attorneys and insurance companies, specializing in the

Florida Special Disability Trust Fund. Joe continued in this business until 1998, when he came to work for

FCCI as Executive Vice President of Claims, where he remains at present.

Joe holds an adjuster, general agent and surplus lines licenses for the state of Florida, and multiple licenses

for other states. His activities over the last 25 years include speaking at the annual Work Comp Convention for

ten years specializing on the topic of the Special Disability Trust Fund. Joe Keene was a member of the Florida

Association of Self Insured‟s legislative committee and worked closely with GW Jacobs. Joe was also on the

State Second Injury Advisory Council Board from its inception until it was disbanded in 1997. He also was a

founding member and initial treasurer of WCCP from

1989-1994.

Joe‟s philosophy on claims has been early

investigation and early conclusion of exposures. It is

his belief that because of rising medical costs in our

society that worker‟ comp cases should be concluded

as early as possible. Joe‟s largest love in the claim

area would be the catastrophic cases. He developed

wellness settlements for catastrophic cases in the

1980‟s. Joe believes that catastrophic claims must be

handled proactively by adjusters with specialized

knowledge and experience. Joe has worked with

some of the largest reinsurance companies in the

world, and his specialty has been consultation in the

catastrophic claims area. Nonetheless, at the end of

the day, Joe Keene is basically an adjuster that loves

his profession.

NWCI General Chair Jim McConnaughhay, Joseph Keene, and

NWCI Program Chair and Hall of Fame President Steve

Rissman at the Hall of Fame Inductions, January 13, 2012.

12

FWCI TV Returns at WCEC 2012! Based on the overwhelming success of FWCI-TV at the last two Workers‟ Compensation Educational

Conferences, FWCI-TV returns again in 2012. You can be a part of the action. FWCI-TV will feature daily

video headlines that highlight the events at the conference. By investing in a 60-second interview, your message

will be delivered to conference attendees, as well as, FWCI‟s database, a targeted industry audience. Your

company‟s message will become part of the daily

newscast, and it will be distributed in the following

ways:

Emailed directly to the FWCI Database

Played on televisions in hotel guest

rooms

Posted to the FWCI website

Posted on the FWCI Facebook page

Posted on You Tube

Played in both Corporate Theaters

Played on video screens in conference

shuttle busses

DVD of your company interview or

advertorial presented by FWCI-TV daily

news broadcast to be used as a

marketing tool

Contact Cathy Bowman for more information about FWCI-TV and other sponsorships, cathy@fwciweb.org or

(850) 425-8186. To see an interview from the 2010 conference click this link to a video posted on FWCI‟s

website http://www.fwciweb.org/Sales%20Video%20V2.mp4.

13

Thanks to the 2011 Multistate

Committee Members!

WCEC 2011 Multistate Program

Robert D. Stokes, Esq. of

Flahive, Ogden & Latson,

Austin TX explaining

important TX workers'

compensation tips in the

TX Multi-State Breakout

room.

James Anderson, Esq. of

Anderson, Crawley and

Burke, PLLC Ridgeland, MS

discussing recent workers'

compensation developments

during the Multi-State

Breakout luncheon.

Mark Davis, Esq. of

McAngus, Goudelock &

Courie, LLC Charleston, SC

in celebrity costume as game

show host for "Workers'

Compensation Jeopardy" at

the Multi-State Closing

session.

14

By: Mark Popolizio, Esquire

Determining a claimant‟s Medicare status is an integral part in evaluating one‟s compliance obligations under

the Medicare Secondary Payer Statute (MSP). When a claimant is identified as a Medicare beneficiary,

several MSP compliance considerations come into play: MMSEA Section 111 reporting (Medicare‟s new

electronic reporting law), conditional payment reimbursement and Medicare Set-Asides.

As part of this exercise, the important question of just how a claimant‟s Medicare status will be determined

must be addressed. One such method currently being used by a large segment of the claims industry is “Query

Process.” This system was introduced by the Centers for Medicare and Medicaid Services (CMS) in relation to

Section 111. Query Process was designed to provide an expedient and coordinated process to ascertain a

claimant‟s Medicare status to help determine Section 111 reporting obligations.

While Query Process is certainly a useful tool, the system‟s utility in assessing MSP obligations outside of

the Section 111 context must be carefully considered. In this regard, understanding the type of information

Query Process provides, and does not provide, is important to ensure that proper MSP protocols are in place as

part of claims handling and settling practices.

This article highlights how Query Process works and examines the system‟s function, utility and limitations

in the bigger picture of MSP compliance.

What is CMS’ Query Process and how does it operate? CMS introduced Query Process as part of its implementation of Section 111. By way of brief background,

under Section 111 certain entities known as Responsible Reporting Entities (RREs)1 are required to (i)

determine a claimant‟s Medicare beneficiary status and (ii) report claims involving Medicare beneficiaries to

CMS if the claim meets a Section 111 “reporting trigger.” The penalty for non-compliance is steep: $1,000 per

day, per claim.

While Section 111 imposes a statutory duty on RREs to determine Medicare status, the statute does not

provide a specific system to be utilized. In response, CMS established a voluntary electronic Query Process

system to assist RREs make this determination.

Under Query Process, an RRE may submit an unlimited number of query requests once a month to determine

a claimant‟s Medicare beneficiary status. Only an RRE (or its registered Section 111 reporting agent) are

permitted access to the Query Process system. A “query response” file is returned to the RRE within 14

calendar days. Certain RREs may also have access to a new online query feature called “Beneficiary Lookup”

which provides an immediate response to a query request. Access to this new feature is not available to all

RREs, and eligible RREs are limited to only 100 query requests per RRE identification number per calendar

month.2

In order to utilize Query Process, the claimant‟s social security number (SSN) or health identification claim

number (HICN) is required. In addition, the RRE must submit the first initial of the claimant‟s first name, the

first six characters of the claimant‟s last name, and the claimant‟s birth date and gender. CMS‟ system must

find an exact match of the submitted SSN or HICN. Thereafter, at least three out of the four remaining

informational elements must yield an exact match.3

If the queried claimant is identified as a Medicare beneficiary, a response is returned indicating

that the claimant was “matched” to a beneficiary in CMS‟ data base. Due to privacy concerns, the

system does not provide the actual date of Medicare entitlement and enrollment, or the basis of the

15

Determining Medicare

Status Assessing CMS’ Query Process System

in the Bigger Picture of MSP Compliance

claimant‟s entitlement. With this information, the RRE then assesses whether the claim meets a “reporting

trigger” thereby requiring it to be reported under Section 111.

Conversely, if the queried claimant is not identified as a Medicare beneficiary, a response is returned

indicating that the claimant was not “matched” to a beneficiary. In certain circumstances, the RRE will need to

re-query the claimant to determine if Section 111 reporting may be required at some subsequent point during

the claim.

What information does Query Process provide, and not provide,

and how is this important in the bigger picture of MSP compliance?

With a basic understanding of how Query Process works under our belts, the focus shifts to analyzing the

nature and utility of the information provided. This involves assessing the type of information Query Process

provides (and does not provide) in relation to the bigger picture of MSP compliance.

As noted above, if the claimant is identified as a Medicare beneficiary, Query Process returns a response

simply indicating that the queried individual has been “matched” to a beneficiary in CMS‟ data base. No other

information is provided. With respect to Section 111, this limited information is adequate as positive

identification of Medicare beneficiary status alone is sufficient to determine reporting obligations. In this sense,

Query Process is precisely calibrated to deliver a very limited, but key, informational element for Section 111

purposes. However, in moving away from Section 111 the question becomes how helpful is this limited

information in evaluating the issues of conditional payment reimbursement and Medicare set-asides (MSAs)?

With respect to conditional payments, the fact that Query Process identifies a claimant as a Medicare

beneficiary is helpful in that it alerts the RRE to the possibility of a conditional payment issue. However, Query

Process does not provide any information regarding conditional payments; nor does it trigger the process for the

parties to receive this information. For that matter, Section 111 reporting, with limited exception, also will not

provide the parties with this information.

Thus, RREs need to ensure that separate compliance protocols are in place to procure conditional payment

information. On this point, it is generally prudent practice to begin this process once the claimant is identified as

a Medicare beneficiary, regardless of whether the claim is technically reportable under Section 111 at the time

this determination is made. This is so because obtaining conditional payment information involves a separate

multi-step process which takes time.

Under this process the RRE (or the claimant) must put the Coordination of Benefits Contractor (COBC) on

notice of the claim and provide this contractor with certain identifying information related to the case and

claimant. This notice is independent of Section 111 reporting and is provided via phone, fax or mail.

Once COBC receives this notice, it in turn notifies another contactor, the Medicare Secondary Payer

Recovery Contractor (MSPRC). The MSPRC then issues a Rights and Responsibilities Letter (RRL) advising

the parties of Medicare‟s potential interests. Thereafter, the MSPRC will issue a Conditional Payment Letter

(CPL) within 65 days of the date of the RRL (in practice this timeline can be longer than 65 days).

The CPL contains Medicare‟s claimed conditional payment amount and provides a corresponding listing of

the claimed charges. The CPL must be examined for accuracy and a request should be made to the MSPRC to

remove any inappropriate claims. It is often necessary to request updated CPLs as the claim matures to ensure

that the most current conditional payment information is obtained. Under current CMS policy, the parties are

generally unable to obtain Medicare‟s “final demand” until after the claim is settled and the executed settlement

document is forwarded to the MSPRC.4

16

As it can take several months to obtain this information, starting the process early allows the RRE time to

obtain the relevant information. Furthermore, addressing this issue during the course of the claim allows the

RRE adequate time to review Medicare‟s claimed conditional payment amount and, if necessary, seek removal

of inappropriate claims. Incorporating these practices as part of claims handling will aid the RRE in obtaining a

more realistic exposure assessment which, in turn, helps properly set reserves, evaluate case value, and optimize

settlement prospects.

On the MSA front, the utility of the information provided by Query Process is also a mixed bag. When

Query Process identifies the claimant as a Medicare beneficiary, this indeed provides the RRE with a valuable

piece of information for MSA evaluation purposes which should be appropriately noted. Armed with this

information, the RRE can then determine the appropriateness of a MSA. In the workers‟ compensation (WC)

context, this involves making sure that claims handlers have firm knowledge of CMS‟ WC-MSA review

thresholds. Per current CMS policy, a WC-MSA is deemed appropriate if at the time of the WC settlement the

claimant is a Medicare beneficiary and the total settlement amount5 is greater than $25,000.

However, it is important to remember that a MSA may also be considered appropriate in situations where the

claimant is not a Medicare beneficiary. For example, under CMS‟ WC-MSA review thresholds a MSA is

deemed appropriate in situations where the claimant is not a Medicare beneficiary but has a “reasonable

expectation of Medicare enrollment within 30 months of the settlement date” and the total settlement amount is

greater than $250,000.

CMS defines “reasonable expectation of Medicare enrollment” to include situations in which the claimant

(a) has applied for social security disability (SSD); (b) has been denied SSD but anticipates appealing that

decision; (c) is in the process of appealing or re-filing for SSD; (d) is 62.5 years or older; or (e) has End Stage

Renal Disease but does not yet qualify for Medicare based upon this condition.6

The question then becomes: Does Query Process provide any of the information necessary to determine if a

claimant who is not Medicare beneficiary has a reasonable expectation of Medicare enrollment for MSA

purposes as that term is defined by CMS? The answer is NO. Thus, RREs cannot rely solely on Query Process

to provide the information needed to determine MSA applicability in all instances.

Accordingly, RREs need to set protocols to obtain the information necessary to determine if a claimant has a

reasonable expectation of Medicare enrollment for MSA purposes when such determination is applicable.

These efforts should center on obtaining “best evidence” to demonstrate due diligence in protecting Medicare‟s

interests. In this respect, CMS‟ definitional factors call for a multi-faceted approach. Some measures for

consideration include: confirming the claimant‟s social security status directly with the social security

administration; determining how best to ascertain and affirm claimant intentions regarding whether he or she

“anticipates appealing” an adverse social security ruling (when applicable); and using other necessary discovery

measures to ensure that all areas of relevant inquiry are addressed.

Conclusion Query Process certainly provides RREs with a powerful tool to obtain a major informational element

necessary to determine MSP compliance obligations. In assessing Query Process, it is important to keep in

mind that the system was designed to help RREs meet a very specific and limited compliance requirement in the

Section 111 context. The system was not intended to provide, nor does it provide, the necessary information to

address all MSP compliance areas. Accordingly, as discussed above, RREs need to have proper compliance

protocols in place to obtain the information that Query Process does not provide to ensure that all MSP

compliance obligations are being fully addressed.

About the Author

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

mpopolizio@cpscmsa.com or (786) 459-9117. 17

Endnotes 1 RRE determination is fact and situational specific in accordance with CMS‟ RRE directives. Under CMS‟ directives, there are a

number of potential entities that could be RREs for Section 111 purposes. While a detailed discussion of CMS‟ RRE directives is

beyond the scope this article, in general RREs typically include, but are not limited to, carriers and self-insureds. It is important to

note that claimants and their lawyers are not RREs under the Section 111 reporting law. To review CMS‟ RRE directives, see

CMS’ NGHP User Guide (December 16, 2011, Version 3.3), Chapter 7 and any subsequent “Alerts” that the agency has released or

releases. 2 This article provides only a general overview of how the Query Process system operates. A detailed examination of the technical

aspects of the Query Process s (e.g. required software, file types, etc.) is beyond the scope of this article. To review this information

see CMS‟ NGHP User Guide (December 16, 2011, Version 3.3), Chapters 13 and 15.5. 3 CMS states that the query process “is to be used only for Section 111 reporting purposes” and refers the RRE to the Section 111

Data Use Agreement for restrictions on the use of the data exchanged for Section 111 purposes. See, CMS’ NGHP User Guide

(December 16, 2011, Version 3.3), Chapters 13.1 and 16. 4 As an exception to the above process, CMS will issue a Conditional Payment Notice (CPN), in lieu of a CPL, in situations where (a)

the MSPRC is notified of a settlement, judgment, award or other payment through Section 111 reporting rather than from the

beneficiary or their representative and (b) the MSPRC has been alerted to a settlement, judgment award, or other payment by the

beneficiary or their representative before the usual CPL has been issued.

On a related note, some RREs are reporting that they have received CPLs which they believe were triggered from their filing of a

Section 111 ORM report (on-going responsibility for medicals). To the extent these reports are accurate this would represent a

change from CMS‟ current process, and may signal an eventual coordination between Section 111 reporting and CMS‟ larger efforts

at benefit coordination. In the author‟s view, further investigation into these interesting reports is in order. As part of this

investigation, an important fact to ascertain would be whether the RRE, in addition to filing a Section 111 ORM report, had also

reported the claim to the COBC. If so, the issue for determination would then become whether it was the Section 111 filing or the

COBC report that triggered release of the CPL.

To learn more about CMS‟ processes to obtain conditional payment information, the reader may wish to review the website

www.msprc.info. 5 CMS defines “total settlement amount” as follows: Total settlement amount includes, but is not limited to, wages, attorney fees, all

future medical expenses (including prescription drugs) and repayment of any Medicare conditional payments. Payout totals for all

annuities to fund the above expenses should be used rather than cost or present value of any annuities. Also note that any

previously settled portion of the WC claim must be included in computing the total settlement. Gerald Walters, CMS Memorandum

to All Regional Administrators, April 25, 2006. 6 Thomas L. Grissom, CMS Memorandum to All Regional Administrators, April 22, 2003.

THE NATIONAL WORKERS’

COMPENSATION INSTITUTE WILL PRESENT

THE 67TH ANNUAL

WORKERS' COMPENSATION

EDUCATIONAL CONFERENCE

& 24TH ANNUAL SAFETY AND HEALTH

CONFERENCE

August 19 - 22, 2012 18

WCEC 2011 Multistate Program

Audience members

watching/listening/partic

ipating in the "Workers'

Compensation Jeopardy"

program

Kyle Kinney, Esq of

Miller, Christie, & Kinney,

P.C, Birmingham AL makes

a point during the General

Opening Session.

R. Briggs Peery, Esq. of

Swift Currie McGhee &

Hiers, LLP Atlanta GA

introduces the speakers at

the Multi-State opening

session.

19

FWCI Hall of Fame Inducts

Honorable John Lazzara

The Honorable John J. Lazzara is Judge of Compensation Claims (JCC) for the

Tallahassee District, being first appointed in 1990. Prior to his appointment, he was

in the private practice of law in Tampa and acted as a circuit civil mediator and

federal court arbitrator. He also worked under contract as a Hearing Officer for the

Hillsborough County Environmental Protection Commission; the Property Appraisal

Adjustment Board; and a Panel Arbitrator on the first New Motor Vehicle

Arbitration (Lemon Law) Board. Judge Lazzara served as President, Conference of

JCCs (1997-99); Chair, Florida Bar Workers‟ Compensation Rules Committee

(1994-95); Member, Appellate Court Rules Committee (2001-07), twice chairing its

Workers‟ Compensation Law Subcommittee; Chair, DOAH/OJCC Workers‟

Compensation Rules Revision Committee (2005-06); and is currently a member of

the Florida Bar's the Standing Committee on Professionalism, the Workers' Compensation Section and its

Professional Conduct Guidelines Committee, and the Alternative Dispute Resolution Section. In 1998 and 2002

Judge Lazzara was nominated for appointment to the First District Court of Appeal. In November, 2005,

Governor Jeb Bush appointed him Interim Deputy Chief

Judge, a position he held until May, 2006. In 2008, the

judge was elected Inaugural President of the National

Association of Workers‟ Compensation Judiciary, and

currently serves on its Board of Directors. In 2009, Judge

Lazzara was inducted as a Fellow of the ABA-affiliated

College of Workers‟ Compensation Lawyers and was

recently elected to its Board of Governors (2011-13). He

frequently lectures on workers ‟ compensation matters, and

volunteers and sits on the Boards of Directors of the Literacy

Volunteers of Leon County and the Epilepsy Association of

the Big Bend. Judge Lazzara received his B.A. and J.D.

degrees from the University of Florida.

20

Abe Agront, Jr. Carmen Calderon Richard Lavery Gary Porter

Donald Ames Kevin Dodson C. Gary Lopez Diane Ray

Cathy Anton G. Scott Dotson Henry Losada Michael A. Reali

Gary Archer Randy Free David J. Martens Claude Revels

Margaret Baumann Raymond Harbison Diana McCluskey Rene Salazar

Sharon Bramlett Kenia Harrell Dr. James McCluskey Virginia Sablet

Todd Brouette Joan Haynes Bob Nesbit Bill Shooter

Charles Brush Linda Horner Hana Osman Ryland Thompson

Daniel Byrne Scott Johnson Margie Perry Thomas Truncale

Charles Williams

Thanks to the 2011 Safety Program Committee

The OJCC, FWCI, the Division, and

the First DCA Will Team-Up to

Present Free CEU/CLE Program

Titled “Answers from the Experts,” this full day CEU/CLE

program was presented February 10, 2012 at the Florida First

District Court of Appeal in Tallahassee. This program brought

together the claims process from a variety of perspectives.

The Florida Division of Workers‟ Compensation presented a

panel from the Bureau of Employee Assistance and Ombudsman

Office (EAO). This illuminated the variety of assistance available

from the Division of Workers‟ Compensation, before a claim

enters the litigation process. The EAO noted the significant volume

of telephone requests they receive annually, and the effort they

invest in responding to those caller‟s concerns. Clearly, there are

injured workers for whom the mailed information is not sufficient.

This panel discussed their role educating workers and employers

about rights and responsibilities they have in the system.

FWCI Program Chair Steven Rissman, State Mediator Wilbur

Anderson, and Judge John Lazzara each moderated a panel

discussion. Following the EAO panel discussion, the topic turned

to mediation. Mediator Wilbur Anderson led a discussion among

mediators Susan Bisbee (TLH), Stuart Suskin (GNS), Eddie

Oramas (PMC), and private mediator Robert Dietz. They focused

on appropriate mediation preparation for the parties and provided

tips for successful conclusion of the mediation. The distinctions

between state and private mediation were highlighted in several

instances. There was unanimous agreement that in-person

attendance at mediation is a major advantage for resolution of

issues or settlement.

Steven Rissman moderated a lively panel discussion including

Judges Hill (GNS), Holley (JAX), and Portuallo (DAY). Judge

Lazzara moderated an informative and insightful panel including

Judges Humphries (JAX), Roesch (PMC), and Winn (PNS). The

Judicial panels addressed issues such as advances on

compensation, interplay of job search for entitlement to TPD

benefits, cost issues in motion to tax instances and in washout

settlements, continuances, need for orders on non-fee stipulations,

discovery issues in pre-PFB & post-PFB matters,

ethics/professionalism issues, proper docket entry & indexing, and

sanctions.

The program concluded with a presentation by members of the

First District Court of Appeal Workers‟ Compensation Unit.

25

25

21

Steven Rissman

Judge Roesch

Judge Holley

Mediator Anderson

Judge Lazzara

Mediator Suskin

Judge Winn

Judge Hill

After the efforts of the EAO, the mediators and the tribulations

of litigation, some cases end up before the Court. This

presentation provided interesting insight into the modern

appellate process in the First District Court of Appeal.

This free program was an unprecedented opportunity for legal

practitioners, claims adjusters, risk managers and other workers‟

compensation professionals. Over 100 professionals attended

from across the state.

This program would not have been possible without the

contributions of the First District Court of Appeal, our host, the

Florida Workers‟ Compensation Institute, the Division of

Workers‟ Compensation, Resource Managers Incorporated

(RMI), and the OJCC. In particular, however, the efforts of

Steven Rissman, Jim McConnaughhay, Kathy Shelton (RMI),

Woody Douglas (RMI), Stephanie Dodson (RMI), Shirley

Kendall (RMI), Cathy Bowman (RMI) and the rest of the

RMI/FWCI team were noteworthy.

The program preparation effort was led since last fall by Judge

John Lazzara (TLH). In addition to managing the preparations

for the program, Judge Lazzara managed the program day, made

introductions and announcements, and acted as a moderator for

one of the panels. Without his effort, leadership, and patience,

this program would not have been possible.

Mediator Bisbee

Judge Humphries

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

Robert Barrett Teresa Elkins John J. Lazzara Claude Revels

Margaret Baumann Dino Fabrizio Nat Levine Steven A. Rissman

Geoffrey Bichler Jean Feldman James McConnaughhay Harry Rosenthal

Maxine Boyer Gregory Foppiani Diana McCluskey Marc Salm

April Brader George Furlong Dr. James McCluskey Debbie Scott

Sharon Brown Kevin Glennon Kris McConnell Mark Siciliano

Candice Buchanan Rafael Gonzalez Nell Merritt Scott H. Silver

Joan Collier Michele Hand Ray Neff Dr. Sanford Silverman

Steve Coonrod Raymond Harbison Dr. Gary Newcomer Jacque Steele

Melissa Corah Debra Hoffman Bob O‟Halloran Ellen Townsend

Sue Coterel Tracey Hyde Hana Osman Karen Ursulich

Ann Crutchfield H. George Kagan Janet Phillips Lisa Wagner

Lorry Davis Joan Kantrowitz Bill Pipkin Dr. Michael J. Webb

Maria Dayi Monnie Kinlaw Rigoberto Puente-Guzman Scott Westman

Robert Dietz David W. Langham Betty Reid Glen D. Wieland

Thanks to the 2011 FWCI Program Committee

22

Mediator Oramas

Judge Portuallo

2012 Legislative Update The following bills each affect some portion of the Florida Workers‟

Compensation law. The list is likely not exhaustive, and the FWCI

would appreciate hearing from you if you know of other pending

legislative action that should be published in the next edition. The

abbreviations “SB” and “HB” stand for Senate Bill and House Bill

respectively.

SB 140: Repeal of Workers’ Compensation Reporting Requirement

Sponsor: Senator Bennett

The bill repeals Fla. Stat. §440.59, F.S., which requires the Department

of Financial Services (DFS) to compile an annual written report on the

administration of Florida‟s Workers‟ Compensation Law and submit

copies of the annual report to the Legislature and the Governor. The

Division of Workers‟ Compensation within the DFS is responsible for

preparing this report. Information contained in the annual report is

available at the DFS website. This bill was passed on third reading on February 8, 2012 and sent to the House

for their action.

Companion Bill: HB4019, sponsored by Representative Nelson. This companion bill was reported out of

Government Operations favorably on December 6, 2011, and was reported favorably our of Economic

Affairs Committee January 12, 2012.

SB 214: Workplace Safety (NHC)

Sponsor: Senator Lynn

This bill creates Fla. Stat. §440.1026. This new section requires all public employers to collect and retain injury

and illness data using OSHA form 300. The collected data must be submitted to the Division of Workers‟

Compensation, and the Division must compile the data, by employer, and post it on their website. The

information is also to be included in the report required by Fla. Stat. §440.59 (see discussion of SB140). The

bill mandates that the Division procedures shall facilitate Florida‟s participation in the U.S. Bureau of Labor

Statistics database. The Division is also mandated to “publicize the availability of a toll-free telephone for 54

public employees to ask questions, request materials, seek 55 assistance related to workplace safety, and report

perceived 56 unsafe workplace conditions.” This bill was referred to the Banking and Insurance, Governmental

Oversight and Budget committees in September, 2011, but was withdrawn from those committees and

“withdrawn prior to introduction” in December 2011.

Companion Bill: as of 01.26.12 no companion bill identified.

SB 400: Patient Brokering

Sponsor: Senator Jones

Patient Brokering is prohibited by Fla. Stat. §817.505. That statute is focused on any person, or health care

facility soliciting, offering any “commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or

in kind, or engage in any split-fee arrangement, in any form whatsoever,” to induce or in return for referring

patients. SB 400 would add violation of this statute to the definition of “racketeering activity” in Fla. Stat.

§895.02. Essentially, this bill would increase the potential penalties for those convicted of patient brokering.

This bill was referred to the Criminal Justice, Health Regulation, and Budget Committees in November 2011.

The Bill was introduced January 10, 2012.

Companion Bill: as of 01.26.12 no companion bill identified.

23

SB 668: Workers’ Compensation Medical Services (H511)

Sponsor: Senator Hays

This bill amends Fla. Stat. §440.13(12) regarding the reimbursement limits for workers‟ compensation

prescriptions. The focus of the change is on the effects of the practice of repackaging of relabeling

pharmaceuticals. The Amended statute would mandate that the reimbursement statutorily allowed would be

limited to the “average wholesale price set by the original manufacturer,” plus a statutory dispensing fee. This

bill was referred to the Banking and Insurance, Health Regulation and Budget Committees in November 2011.

On January 19, 2012 it was reported favorably out of Banking and Insurance with one amendment. It is

currently pending in Health Regulation Committee, but no hearing has been scheduled as of this time.

Companion Bill: HB511, sponsored by Representative Hudson. This bill was referred to the Insurance

and Banking Subcommittee, the Health and Human Services Committee, and the Economic Affairs

Committee in November 2011. It was reported favorably out of the Insurance and Banking

Subcommittee on December 7, 2011 and was introduced January 10, 2012. The Health and Human

Services Committee substituted new language into the bill and recommended that amended bill to the

House. The amended bill was read on the floor on February 10, 2012. The bill as amended can be

viewed here: http://www.flsenate.gov/Session/Bill/2012/0511/BillText/c1/PDF

SB 676: Workers’ Compensation Certificate-of-exemption Process (H307)

Sponsor: Senator Smith

This bill amends Fla. Stat. §440.02 regarding election of exemption from Workers‟ Compensation, by deleting

the requirement for corporate officer‟s elections are in writing. The amendments also add “a member of a

limited liability company” to those who are “employees” under Fla. Stat. §440.02(15)(c). This bill was referred

to the Banking and Insurance Committee, Commerce and Tourism Committee and Budget Committee in

November 2011. The Banking and Insurance Committee reported the bill out favorably on January 9, 2012.

The Commerce and Tourism Committee scheduled it for hearing on January 26, 2012. It is now in Budget

Subcommittee on General Appropriations.

Companion Bill: HB307, sponsored by Representative Bernard. This bill was referred to the Insurance

and Banking Subcommittee, the Government Operations Appropriations Subcommittee, and the

Economic Affairs Committee. The Insurance and Banking Subcommittee reported the bill out favorably

in November 2011, as did the Government Operations Appropriations Subcommittee in December 2011.

The Economic Affairs Committee reported it out favorably on January 12, 2012 and it was passed on

third reading January 25, 2012.

SB 896: Florida Statutes

Sponsor: Senator Thrasher

This bill amends Fla. Stat. §440.45 which has specific references to July 1, 1999 and the expiration of various

terms of office on that date. The provisions relate to the members of the Statewide Judicial Nominating

Commission for Judges of Compensation Claims. The bill summary describes these provisions as either

“having become obsolete, have had their effect, have served their purpose, or have been impliedly repealed or

superseded.” This bill was referred to the Rules Committee in December 2011. The Rules Committee reported

the bill out favorably on January 30, 2012 and placed on the Senate Special Order Calendar for February 13,

2012.

Companion Bill: HB 7007, sponsored by Rules and Calendar Committee. This bill was introduced in

December 2011 and referred to the Calendar. It was passed on third reading on January 25, 2012 and

sent to the Senate.

SB 910: Public Employees

Sponsor: Senator Hayes

This bill amends Fla. Stat. §112.18, which provides a presumption of compensability of medical conditions

“tuberculosis, heart disease, or hypertension.” The presumption currently applies to “any Florida state,

municipal, county, port authority, special tax district, or fire control district firefighter or any law 24

enforcement officer, correctional officer, or correctional probation officer as defined in s. 943.10(1), (2), or (3).”

The revisions add a requirement that the affected employee also have been “employed by the current employer

for at least 5 years and who is less than 37 years of age.” The law requires a pre-employment physical

examination requirement for firefighters and law enforcement officers; the bill would add that requirement for

“correctional officer(s), correctional probation officer(s).” The bill also specifies that “risk factors and

epidemiological data” related to nonwork-related conditions of the injured worker “are appropriate for

consideration in denying or overcoming the presumption.” The law currently provides some statutory

parameters specifically for “law enforcement officer(s), correctional officer(s), or correctional probation

officer(s)” in Fla. Stat. §112.18 regarding independent medical examinations, time limits for seeking to use the

presumption, and limitations on the presumption in some instances in which an employee has “departed in a

material fashion from the prescribed course of treatment.” The bill would make several of these provisions

likewise applicable to “firefighter(s).” This bill was referred to the Banking and Insurance Committee,

Governmental Oversight and Accountability Committee and Budget Committee in December 2011. The Bill

was introduced January 10, 2012. It was recommended favorably by the Banking and Insurance Committee and

the Senate Rules committee referred the bill to Governmental Oversight and Accountability and the Budget

Committee. The bill is currently in the Governmental Oversight and Accountability Committee.

Companion Bill: HB 365 is similar but not identical, sponsored by Representative Costello. This bill

was introduced January 10, 2012. It has been referred to the State Affairs Committee.

SB 918: State Group Insurance Program

Sponsor: Senator Oelrich

This bill amends Fla. Stat. §110.123 to add

subsection (14), establishing a state employee

health and wellness clinic pilot program.

This will provide state employees with

primary care services, wellness services and

occupational health services. The bill

provides in section (c) that the “vendor is not

required to file insurance claims, including

medical, health, and workers‟ compensation

claims, for any service provided by the

clinics.” This bill was referred to the Health

Regulation Committee, the Governmental

Oversight and Accountability Committee and

the Budget Committee. It has not been scheduled on the agenda of any committee at this time.

Companion Bill: HB203, sponsored by Representative Nelson. This bill was introduced January 10,

2012. It has not been referred for committee consideration or scheduled for any votes.

SB 938: Insurance Agents and Adjusters

Sponsor: Senator Richter

This bill amends Fla. Stat. §626.221 regarding examination requirements for insurance professionals. As the

law currently provides, there is an examination exemption for “(f) A person who has been licensed as a

company employee adjuster or independent adjuster for motor vehicle, property and casualty, workers‟

compensation, and health insurance may be licensed as such an adjuster without additional written examination

if his or her application for licensure is filed with the department within 48 months after cancellation or

expiration of the prior license.” This bill would delete that exemption. This bill also amends Fla. Stat.

§626.241(6)(a) regarding the test for an “all-lines adjuster” by removing the alternative for an examination

limited to adjusting in a particular field such as automobile, health or workers‟ compensation. This bill also

amends Fla. Stat. §626.2815 by exempting “public adjusters for workers‟ compensation insurance or health

insurance” from requirements for “elective continuing education hours required by chapter 648. This

bill also clarifies Fla. Stat. §626.869 regarding the qualification conveyed by an “all lines” adjuster

25

license. The bill includes a “safe-harbor” provision allowing those currently licensed (as of 10.01.12) in a

limited line, such as “workers‟ compensation,

or health insurance,” to remain so licensed

until such time as they renew their license.

This bill was referred to the Banking and

Insurance Committee and the Budget

Committee in December 2011. Banking and

Insurance reported a committee substitute of

the bill out favorably on January 9, 2012. The

Budget Subcommittee on General Government

Appropriations reported the bill out favorably

on January 19, 2012 and it remains pending in

the Budget Committee.

Companion Bill: HB725, sponsored by

Representative Hager. This bill was considered

by the Insurance and Banking Subcommittee

January 11, 2011, and a committee substitute

was reported out favorably by the committee that day. The committee substitute has been referred to the

Government Operations Appropriations Subcommittee and Economic Affairs Committee. It was on that

Committee‟s agenda on February 9, 2012.

SB 1094: Workers’ Compensation

Sponsor: Senator Hays

This bill amends Fla. Stat. §440.107 to alter the calculation of penalties for failure to secure payment of workers

Compensation. The law currently calculates this as 1.5 times the amount the employer would have paid in

premium within the preceding three years, or $1,000.00. The revisions alter this to 2 times the premium in the

preceding one year period, or $1,000.00. This bill was referred to Banking and Insurance and the Budget

Committee on January 10, 2012. The Banking and Insurance Committee reported the bill out favorably on

January 9, 2012. The Economic Affairs Committee recommended the bill favorably on February 1, 2012 and it

has been placed on the calendar for reading.

Companion Bill: HB789, sponsored by Representative O‟Toole. This bill was referred to the Insurance

and Banking Subcommittee, the Government Operations Appropriations Subcommittee and the

Economic Affairs Committee in December 2011.

HB 4085: Workers' Compensation

Sponsor: Representative Caldwell

This bill repeals Fla. Stat. §627.092 and amends Fla. Stat. §627.312. The current provision of Fla. Stat.

§627.092 provides “there is created within the office the position of Workers‟ Compensation Administrator to

monitor carrier practices in the field of workers‟ compensation.” The amendment of Fla. Stat. §627.312 deletes

(2), which currently provides “Any policy issued by the Florida Workers' Compensation Joint Underwriting

Association with an effective date between the date on which this act becomes a law and June 30, 2004, shall

be rerated and placed in the appropriate tier provided in s. 627.311(5), as amended, effective July 1, 2004, and

shall be subject to the premiums and charges provided for in that section as amended.” This bill passed on third

reading on January 25, 2012 and sent to the Senate.

Companion Bill: as of 12.01.11 no companion bill identified.

The Regular Session of the Florida Legislature convenes January 10, 2012 and concludes March 9, 2012. For

more information about pending legislation, schedules of hearings, and the legislature generally, visit

http://www.flsenate.gov/ and http://myfloridahouse.gov/.

26

THE NATIONAL WORKERS‟ COMPENSATION INSTITUTE

EDITORIAL GUIDELINES FOR WEBSITE SUBMISSIONS

The National Workers‟ Compensation Institute (NWCI) is a nonprofit

educational organization that serves as a comprehensive resource to all

workers‟ compensation stakeholders. The NWCI is an outgrowth of the long-

established Florida Workers‟ Compensation Institute. FWCI remains in

existence under the NWCI umbrella and continues its Florida focus, while the

national organization provides a broader outreach across all states. The NWCI

sponsors an annual National Workers‟ Compensation Educational Conference

(NWCEC) 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 NWCI 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 NWCI 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 National Workers‟ Compensation Institute‟s website, and is

republished here with permission.” Linking to the NWCI 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 NWCI.

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 NWCI editor as time

permits.

Thank you for your interest in submitting material to the NWCI website.

Joan E. Collier, Online Communications Officer, Phone 941-954-3365; joancollier@comcast.net 27