Industry Updates: New Hampshire and US legislative bills

Updates on previously reported legislative bills provided by NASP Legislative Affairs Committee:

New Hampshire HB 1670

New Hampshire House Bill 1670 would allow an equitable remedy of subrogation to a bonding company which pays a claim on a bond which indemnifies a public servant for injuries or damages as a result of failure to perform his/her duties or through commission of fraudulent acts or omissions.  The bill would take effect 60 days after passage.

New Hampshire HB 1658

New Hampshire House Bill 1658 would require the Director of the Division of Motor Vehicles to deliver either a) in hand a notice of revocation or suspension of a driver’s license to a law enforcement officer or b) a notice via certified mail to the suspendee’s last known address.  Evidence that the suspendee signed the certified mail receipt shall be prima facie evidence that he/she was notified of the suspension or revocation.  The bill would take effect 60 days after passage.

New Hampshire HB 1581

New Hampshire House Bill 1581 would require that the suspension or revocation of a driver’s license by the Director of the Division of Motor Vehicles commence no sooner than the day after the hearing.  The bill would take effect 60 days after passage.

United States HR 3922

As members will recall, the Bipartisan Budget Act of 2013 (BBA) legislatively overruled the United States Supreme Court’s decisions in Arkansas HHS v. Ahlborn, 547 U.S. 268 (2006) and Wos v. E.M.A., 568 U.S. 627 (2013) which previously limited state Medicaid programs’ recovery to portions of settlements or judgments attributable to medical expenses. Under the BBA, however, state Medicaid programs are specifically required to seek reimbursement from “any payment” the Medicaid recipient receives from a third party who is legally liable for the costs of any recipient’s medical services available under a Medicaid plan. In addition, state Medicaid programs’ third party recovery rights are exempted from the provisions of the federal Medicaid anti-lien statute. The original effective date was October 1, 2014.

However, the Medicare Access and CHIP Reauthorization Act of 2015 delayed the changes until October 1, 2017. The recently filed Helping Ensure Access for Little Ones, Toddlers, and Hopeful Youth by Keeping Insurance Delivery Stable Act of 2017 (HEALTHY KIDS Act) sought to extend the effective date to October 1, 2019, but the extension language was removed from the bill.

Now, HR 3922, the Continuing Community Health And Medical Professional Programs to Improve Our Nation, Increase National Gains, and Help Ensure Access for Little Ones, Toddlers, and Hopeful Youth by Keeping Insurance Delivery Stable Act of 2017 (CHAMPIONING HEALTHY KIDS Act) seeks to extend the effective date to October 1, 2019.   The bill quickly passed the House and is currently with the Senate Finance Committee.

The above reporting is only meant to give a brief synopsis of bill(s) of interest to subrogation professionals and is not intended to provide a full and detailed explanation. If a reported bill is of interest to you, please review it in its entirety and seek appropriate legal advice. 

NASP Legislative Affairs Committee

Paul James Named President, Chief Executive Officer

Appointment signifies commitment to building on the firm’s 20+ years as industry leader in insurance recovery and subrogation 

Paul James has been appointed to the role of President and Chief Executive Officer of Insurance Recovery Group, Inc. (IRG) by David A. Jollin, IRG’s Chairman of the Board. As the new leader of IRG, James will be charged with growing the company’s overall operations, building on IRG’s 20-year record of industry leadership in insurance recovery and subrogation.

Of the appointment, Jollin says, “Mr. James is a consummate insurance professional with a strong track record in delivering profitable growth and stellar sales and service results for key insurance organizations.” Jollin adds that James’ expertise in business development strategies, along with his broad experience spanning various sectors in the insurance industry, will be a strong asset to the firm.

Among the key priorities for James will be continuing IRG’s growth momentum of the last decade, including that of Insurance Subrogation Group (ISG), a division of IRG. “Subrogation is one of the firm’s core strengths” says James. “I see significant opportunities to expand subrogation services and capabilities to insurers, reinsurers, self-insurers, insurance syndicates, third-party administrators, managing general agents, captives and independent adjustment companies.”

James has more than 25 years of experience in the insurance industry. Most recently, he served as Assistant Vice President at Hanover Insurance Group, Worcester, MA.  Prior to that, he was Regional Sales Director for Travelers of Massachusetts. For many years he was an owner of Steffon, James and Finnegan Insurance Agency, Inc. in Worcester, MA, where he was the President and Sales Director.

James holds a Master of Science in Organizational Leadership from Nichols College, and a Bachelor of Science from Worcester State College. He is also an Accredited Advisor in Insurance (AAI).

Making Obesity Work for You

Obesity is a national epidemic.  It contributes substantially to indemnity and medical costs in workers compensation cases.  Now insurers can find some relief in New Hampshire, Massachusetts, Louisiana and Nevada by filing for recovery from the Second Injury Fund when serious obesity is present.

In May of 2014, IRG successfully argued and established legal precedent in the case Kevin O’Meara v. Retention and Operations Group. In this case, IRG argued that the American Medical Association’s new interpretation of the definition of obesity, that it is indeed a disease and not solely a diet issue, would qualify this condition as a prior, permanent impairment and therefore recoverable from the Second Injury Fund.

If you have any questions involving a claim in which the injured worker suffers from obesity, please refer the matter to IRG for a free consultation to discuss the potential recovery from the Fund.

LexisNexis Published Co-Author Attorney Marie Cheung-Truslow’s Chapter on “Bringing Subrogation Actions”

Attorney Cheung-Truslow co-authored with Attorney Steven Theesfeld of Yost & Baill a chapter in the New Appleman on Insurance Law Library Edition, a LexisNexis publication considered to be the most comprehensive source for insurance law. Chapter 160, entitled “Bringing Subrogation Actions” addresses an insurer’s and self-insured’s rights to recover amounts it has paid for losses on its policies by means of subrogation. Subrogation is distinguished from restitution, reimbursement, liens and assignments against third parties and its own insureds. This chapter deals with who has the right to pursue a subrogation action, when such actions are allowed, and against whom such actions may be brought. The Chapter not only provides an analysis of recent case law, with citations, but also helpful hints from Attorneys Cheung-Truslow and Theesfeld. A copy of New Appleman on Insurance Law Library Edition is available by searching the publication at New Appleman on Insurance Law Library Edition

Policyholder’s Failure to Cooperate Requires Disgorgement of Monies Paid by Insurer

In Merchants Mutual Insurance Company v. Olaniyan et. al., Massachusetts Superior Court judge on August 7, 2013, ruled that monies paid out by the insurer for additional living expenses must be disgorged by the policyholder where he failed to appear for examination under oath and produce salient records.  Attorney Marie Cheung-Truslow and Scott Dildine represent Merchants Mutual Insurance Company. See Merchants Mutual Ins. v. Olaniyan

IRG Wins Claim for Client Reimbursement in Amount of $778,732, Plus Interest

In a decision dated October 1, 2008, an Administrative Judge at the Massachusetts Department of Industrial Accidents ordered the Workers’ Compensation Trust Fund to reimburse an IRG client a total of $778,732.77, which represents the full exposure of the Trust Fund under the Massachusetts statute. The Trust Fund was also ordered to pay ongoing medical reimbursement at the statutory 75%, plus interest at 10%, which is estimated to be $212,000.

The Trust Fund made an offer for settlement that IRG deemed inadequate and out of sync with the Fund’s exposure in the case. IRG instead recommended a trial of the case.

IRG, through its law firm IRLA, brought the employee back from California to testify at hearing. Although the evidence was strongly in favor of our client, the Fund still failed to make a reasonable offer of settlement. In the end, the Judge issued a well-crafted decision, finding all the elements of the statute satisfied. The appeal period for the Fund will run out on November 1, 2008.

This claim exemplifies IRG’s willingness to prosecute claims on behalf of our clients and maximize our client’s rights to reimbursement when Trust Funds are unwilling to offer fair value for their exposure.

Uehlein, Nevils Published Overview of Second Injury Fund Changes in The Journal of Workers Compensation

The Journal of Workers Compensation recently published Second Injury Funds in Flux; Opportunities, Changes, and Questions by W. Frederick Uehlein and Mark Nevils.

Summary: In recent years, New York, South Carolina, and Georgia have enacted legislation to phase out their respective Second Injury Funds (SIFs). Over 20 SIFs have closed or “sunset,” leaving about 20 states with SIFs open to claims with new dates of injury. Of these, about 10 have enabling language that creates significant opportunities for employer savings.

While many SIFs have closed to future claims, employers should not forget that there is still, by the authors’ estimates, upwards of $40 billion dollars to recover from those funds. Employers and insurers need to be certain that processes are in place to recover those dollars effectively and efficiently. Furthermore, the clock is ticking on several funds, making it imperative that insurers and employers with exposure in those states act now to recoup any outstanding recoveries.

This article briefly reviews the history and intent of SIFs and provides an update of major changes with respect to SIFs that have recently closed or been changed by key laws. It also seeks to put the role of today’s SIFs in a more modern context. For employers, that context is an era of significant interstate and world competition.

IRG Victory in MA Court Ruling: Door is Still Open for Recoveries Previously Thought Closed

For insurers with potential MA Second Injury Fund claims with dates of injury between 12/10/85 through 12/23/91, the door is still open for successful recoveries. This past spring, the Massachusetts State Supreme Judicial Court in both the Oakes v. Travelers and Alves v. GM claims established that there is no statute of limitations for claims by insurers pursuant to M.G.L. ch. 152 s.37, the second injury fund law, for claims with dates of injury between December 10, 1985, and December 23, 1991 (“Mid-Act”).

Insurance Recovery Legal Associates fought this battle to preserve the right to file these claims for our clients. We diligentlay pursue claims through the appellate system when necessary in order to protect our clients’ rights. This decision was extremely close with the SJC split 4 to 3 on one case and 3 to 3 on the other. It is favorable news for the many clients and business partners that currently have IRG working on their Massachusetts files.

If you are not currently working with Insurance Recovery Group (IRG) on your MA files, be aware that the further we get from the 1985 – 1991 DOI claims, the more difficult it will be to obtain the documents and evidence needed for successful SIF recovery. Timing is of the essence and urgency is in order to ensure that all such cases are identified and are being aggressively pursued before the passage of time creates an insurmountable obstacle to obtaining aged documents. Otherwise, your opportunities may be lost forever.

Contact us today if you would like to learn more about how we can help you with your second injury fund recoveries.

Louisiana Legislature Post-pones Decrease in Second Injury Fund

The Louisiana legislature recently enacted changes to the Second Injury Fund statute. The prior statute stated that the thresholds from July 1, 2004 through July 1, 2007 would be $25,000 medical and 130 weeks indemnity. At the end of this period, thresholds were scheduled to decrease to $5,000 medical and 104 weeks indemnity. However, the legislature recently postponed the decrease for two more years, leaving the current thresholds in place for dates of injury between July 1, 2004 and July 1, 2009.