Kansas—WC Reimbursement for Air Ambulance Services
On May 13, 2022, the Supreme Court of Kansas, in
EagleMed, LLC v. Travelers Insurance, remanded a fee dispute between an air ambulance carrier and a workers compensation (WC) insurer to the Workers Compensation Appeals Board (Board) for a determination of whether the billed air ambulance charges are
usual and customary as required by Kansas’ 2012 WC fee schedule.
The court ruled that it did not need to decide whether the federal Airline Deregulation Act (ADA) preempts the 2012 WC medical fee schedule requirement that air ambulance reimbursements “will be limited to usual and customary charges” or construe the meaning of the term “usual and customary,” without first having the Board make factual determinations of whether the fees charged by the air ambulance carrier are supported by evidence that meets the “usual and customary standard.”
With this decision, the court found that both the Board and appellate court erred in their respective rulings, where the Board found that the WC insurer must pay the full amount billed by the air ambulance carrier due to federal ADA preemption, and the appellate court held that the Board lacks authority to adjudicate a fee dispute between a WC insurer and air ambulance provider due to federal ADA preemption.
Wisconsin—COVID-19 Lawsuit Not Barred by Exclusive Remedy
On May 3, 2022, the federal District Court for the Eastern District of Wisconsin, in
Ruiz v. Conagra Foods Packaged Foods, LLC, reviewed a wrongful death and survival lawsuit against an employer alleging that the employer’s failure to implement safety measures in the workplace caused an employee’s COVID-19 infection, which spread to the employee’s wife and led to her death.
The court found that the
claims brought by the employee were barred by workers compensation (WC) exclusive remedy pursuant to section 102.03 of the Worker’s Compensation Act, which provides that an employer is liable in WC and WC is the exclusive remedy for an employee who sustains an injury while performing work incidental to the employment, that the injury is not self-inflicted, arose out of the employment, and both employer and employee are subject to the provisions of the Act.
The court, however, did not dismiss the
claims brought by the estate of the employee’s wife. The court found that the estate did not meet the required statutory conditions for liability under WC and rejected the employer’s argument that the estate’s claims were barred by exclusive remedy because they flow from the employee’s workplace exposure to the virus. In its analysis, the court recognized that Wisconsin has no case law addressing the issue and relied on two appellate decisions—from a federal and a California court—which held that only nonemployee claims that are completely dependent upon the employee’s injuries are barred by exclusive remedy. The court then concluded that the estate’s tort claims were not barred because the estate was seeking damages in tort arising from the spouse’s death, an event allegedly caused by, but not legally or logically dependent on, the employee’s infection. Nevertheless, the court asked the parties to submit additional briefs addressing whether public policy would bar recovery of the wrongful death and survival claims brought by the estate, which require a finding that the employer owed a duty of care to the wife to mitigate the risk of exposing employees and others to the virus.
NCCI will monitor further developments.
For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and
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