The Attorney Should Hear You

Written by Maurice Abarr on . Posted in Veterans Disability, Workers Compensation

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If you’re injured on the job or due to your military service, you’re already suffering physical pain, emotional distress, and may possibly be facing financial ruin. Such circumstances are likely to be amongst the most difficult you’ve ever faced. We understand. This is our field of expertise. And, we know how important it is—not to just listen—but to really hear our clients. We’ll explain the process and guide you through the various decisions that must be made. And, we’ll craft the best possible legal strategy, based on your unique case.

We’ll let clients in a recent Workers Compensation case provide some perspective…

Mr. B.: “Mr. Abarr took my case and helped guide me through the toughest time in my life. Mr. Abarr got me the best care in southern California. After being in a trucking accident where I suffered a traumatic brain injury. Maurice had my back from day one. He loves to help people and so does his staff. Maurice you are my hero! Thank you for everything.”

Mrs. B.: “Mr. Abarr helped my husband and myself throughout our case every step of the way. He is a kind, sensitive and a very knowledgeable person and lawyer! I’m very proud of the way Mr. Abarr and his staff handled our case. We couldn’t have done it without them. Best lawyer that you could ask for with a beautiful soul that really cares for his clients. He will do whatever it takes to get you the information and care that is needed for your case. He’s a very hands on lawyer that truly cares for people.”

If you’ve sustained a job or service related injury, give us an opportunity to hear you. My staff and I are ready to help. There is no charge for a case evaluation. Ever.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

When Your Spouse Dies On The Job

Written by Maurice Abarr on . Posted in Workers Compensation

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Your spouse has died in a work-related tragedy. The grief is deep and the tasks seem overwhelming. The unfortunate truth is that such death benefit claims are often won—and lost—based upon indirect or circumstantial evidence. Few survivors are emotionally prepared to seek legal advice or contemplate litigation. However, the passage of time is almost never an ally in such cases and delay can cause complications in any case one decides to pursue. The sooner a lawyer specializing in Workers Compensation cases is contacted, the sooner an investigation and the discovery process can commence. A qualified attorney will begin capturing and documenting the available circumstantial evidence related to the time and place of death while its fresh. We at The Law Offices of Maurice L. Abarr understand the issues and challenges faced by survivors. You’ve suffered grievous loss. My staff and I are at your disposal. There is no charge for a case evaluation and we will do our very best to protect your interests as we help you through the process.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Workers Can’t Be “On Call” During Breaks—California Supreme Court

Written by Maurice Abarr on . Posted in Workers Compensation

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According to the Associated Press (23rd December 2016), the California Supreme Court has ruled that workers in California cannot be required by their employers to be “available” or “on-call” during their short rest breaks and that employers must give up any control over how employees spend that time.

The ruling came in a lawsuit by security guards for ABM Security Services Inc. The high court said the firm’s policy of requiring guards to keep their radios on and respond to needs, such as escorting a tenant to the parking lot during rest periods, violates state law.

In the ruling, joined by 4 of the 7 members of the court, Associate Justice Mariano-Florentino Cuellar acknowledged the problem, writing, “An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond.” … “Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk or completing a phone call to arrange child care.”

The bottom line: If your employer requires you to be “available” for company business during your rest breaks, this is no longer legal in California. If you experience such treatment, contact us for help with this issue.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Understanding 2016 California Ballot Propositions

Written by Maurice Abarr on . Posted in Veterans Disability, Workers Compensation

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The 2016 election is less than a week away. It’s absolutely in your interest to be well-informed about issues that affect you and your family. And, of course, each of you who are eligible to vote must do so.

For those with an on-going need for prescription drugs, there are issues of very real consequence. One of them is California Proposition 61. This is what the Los Angeles Times published in its “Election 2016: California Voters Guide” section from Sunday, 23 October 2016:

“Question [the proposition]: Should California mandate the state agencies contraction to buy prescription drugs pay no more than the lowest price paid for the drug by the Department of Veterans Affairs?

Money raised for “Yes” campaign: $14.6 million

Money raised for “No” campaign: $108.9 million

What you should know: This measure would require state agencies to pay no more for a prescription drug than the price the U.S. Department of Veterans Affairs pays. The VA typically pays the lowest price for prescription drugs of any public or private entity, because federal law ensures the agency gets a 24% discount off a drug’s list price right off the bat. Proponents argue it would eventually help lower soaring drug prices statewide. Opponents, including the pharmaceutical industry, warn it could lead to higher drug prices for veterans and seniors.”

I wouldn’t presume to tell you how to vote. But, it’s worth noting that “big pharma” has invested over $100 million dollars trying to influence you. You can draw your own conclusions as to whether they regard this as a threat to their profits. It’s very much in your interest to cast your vote on Proposition 61 wisely.

Contrarily, for a balanced consideration of Proposition, there are some organizations which say they are speaking on behalf of Veterans that assert that if Proposition 61 becomes law, it may cause an INCREASE in the cost of medications being prescribed to Veterans. Given the amount of money that is being spent by Big Pharma to defeat this Proposition, I frankly question the veracity of the argument that there will be any significant cost increases being passed on to Veterans. For those, such as myself, who take the Veterans’ interests to heart, I think this is a “smoke and mirrors” argument that was created by “big pharma” to fuel their challenge to Proposition 61.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Filing A Workers Compensation Claim Without Fear Of Retaliation

Written by Maurice Abarr on . Posted in Workers Compensation

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This is an all too common problem:

“I got injured at work, but do not want to file a Workers Compensation claim because I’m afraid I will lose my job, or that my employer will treat me badly.”

There is always a risk of a work-related injury if you are employed. For that reason, employers in California are required by law to provide Workers Compensation insurance for their employees. Thus, if you get injured at work—or acquire an illness that can be attributed to your work—your employer is required to inform you of their Workers Compensation insurance carrier, provide you with a claim form, and pay for your medical treatment.

Workers Compensation ensures that an injured worker receives some form of wage replacement while receiving medical care for their work-related injury. In order to qualify for that benefit—called “Temporary Disability”—you must be continuously off work, declared “temporarily totally disabled,” and engaged in active treatment. Ordinarily, you are not entitled to this benefit for simple medical appointments.

The Workers Compensation system has developed a reputation—some of it good, some of it not so good. The “good” is that Workers Compensation is a specialized area of law that provides for injured workers only. It allows injured workers to seek the proper medical care to recover after an injury, without relying on their private insurance carrier. The “not so good,” is that frivolous claims do happen – which leads to negative impression by employers. Such claims (and the perception created by them) are the primary reason that Workers Compensation may be viewed negatively or met with skepticism by employers. This contributes to the hostility some employers may have towards an employee who files for such benefits.

Most employers, however, understand the risks involved in performing certain duties at work, whether it’s carrying heavy loads, excessive typing, or repetitive bending. There is always a possibility that, with a wrong move or repetitive motions over time, an injury will arise. If you continue to work, knowing you’ve sustained an injury and don’t seek the proper treatment, you may compound your injury until you are unable to work at all. Thus, injured workers should not refrain from filing a Workers Compensation claim out of fear. Though there have been situations where an employer has fired an employee for filing a Workers Compensation claim, or been treated a hostile manner by the employer, these situations can sometimes be corrected with prompt and appropriate action by the employee.

At-will Employment & Your Disability

Most workers have “at-will” employment. This means that an employer may fire an employee with or without just cause. In other words, no reason or warning is required to justify the termination of employment. However, an employer may not fire you because of your disability. Most employers must comply with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), which prohibit them from discriminating against workers due to their disabilities.

You and your employer will become aware of any disabilities you may have after you receive diagnosis and treatment from a physician. Typically, an injured worker will be treated by a Primary Treating Physician (PTP) within the Workers Compensation system, known as the Medical Provider Network (MPN). Generally, the PTP will write a report that lists any physical limitations, known as “modified duties” or “restrictions,” you may have. Upon notification of these restrictions, your employer is required to make a good-faith effort to reasonably accommodate these modified duties.

However, not all employers may be able to accommodate such modified duties. Your only option will be to seek other work or cease working. In these situations, the employer would not be violating the law for “letting you go,” since they just can’t accommodate your restrictions.

Wrongful Termination & Your Disability

If it’s obvious that your employer fired you solely because of your work-related injury—or for filing a Workers Compensation claim—you should definitely consult an attorney. A different legal issue is at stake—wrongful termination. It is generally illegal for an employer to fire or punish you for exercising your rights to receive Workers Compensation for a work-related injury. If this occurs, the employee must prove* that he or she was fired as a form of retaliation for filing the claim. Thus, if you feel that you are facing a situation like this, you must inform your attorney as soon as possible. He or she may choose to take action on your behalf or refer you to a specialist in Employment Law.

*Note: Proving that the termination was substantially due to the exercise of your rights as an injured worker can be difficult. Each case must be assessed by a qualified attorney based on the facts accompanying it.

If your injury is indeed work-related and has been accepted by the insurance carrier, there should be no hostility between you and your employer—you are not suing your employer when you file for Workers Compensation. You are merely seeking the benefits afforded to you by law and from an insurance policy your employer pays for.

Thus, filing for Workers Compensation should not be feared—it should be exercised in order to help you return to work quickly. We at The Law Offices of Maurice L. Abarr are uniquely well qualified to advocate for you and protect your rights. Contact us today for a free consultation.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Dear Doctor: Submitting another Request For Authorization is NOT the Answer!

Written by Maurice Abarr on . Posted in Workers Compensation

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One of the most frustrating things that can happen during the course of medical treatment for a work-related injury is when a course of treatment your doctor recommends (surgery, prescription, etc.) gets denied by Utilization Review (UR). That’s the system used by compensation claims administrators to decide whether that recommendation is medically necessary.

Unfortunately, too many doctors (accustomed to the older system) think they can simply issue another Request For Authorization (RFA) for the same treatment when UR denies a request. The reality under the new law is somewhat bleak: Once a denial has been made, it remains in effect for twelve months. Resubmitting an RFA at that point is an exercise in futility. The only recourse after a UR denial is to request an Independent Medical Review (IMR) within thirty (30) days of the UR decision.

More bad news: The statistics coming out of IMR suggest that the UR decision is upheld by IMR about 90% of the time. Under these circumstances, it’s understandable to question even bothering with the whole process. The answer is in understanding how to increase the probability that the UR denial will be overturned by the IMR—i.e., how to increase the likelihood that the requested treatment will be authorized by IMR overturning the UR denial.

According to regulatory law, IMR is supposed to get copies from the claims administrator of all medical reports relevant to the injured worker’s current medical condition produced within six months prior to the date of the RFA. There are two parts of that long sentence that are important:

  • First, “from the claims administrator.” That means that the parties least motivated to get treatment approved are a primary source of information for the final decision makers. They’re not likely to provide any more information than they did to their own UR—which denied the treatment in the first place.
  • Second, the word “relevant.” There’s scant guidance on what is relevant—or at least that’s what the claims administrators will say.

With IMR having difficulty getting medical records on which to base their decisions—plus an increasing load of cases coupled with a commensurate increase in pressure to close cases—it’s small wonder that IMR ends up rubber stamping the UR denials more than 90% of the time.

So what’s the best way for your case to end up being one of the 10% that’s overturned?

  • The first step is not to rely on the carrier being the sole source of information for IMR. The law allows for the injured worker to submit medical records relevant to the situation. Certainly, the injured worker or injured worker’s attorney is going to be highly motivated to make sure that relevant information gets in front of IMR. From the time a case is assigned to IMR, an injured worker has 15 days to submit those records—so having them ready to go is always a good idea.
  • The second way to increase the injured worker’s “odds” of being in 10% of the decisions that are overturned—meaning the treatment is authorized—is to stay on top of all IMR paperwork. IMR has a huge backlog so they’re motivated to close cases. Towards that end, they will issue an IMR Confirmation Form. This requires the injured worker to return the form within 15 days, essentially saying, “Yes, I want to continue with the IMR process.” Otherwise, IMR assumes that the case has been dropped and simply upholds the UR denial. If you’re working with an attorney, don’t assume that because you’ve received an IMR Confirmation Form that your attorney did as well. Make sure you and your attorney are on the same page at all times and that you don’t miss critical short deadlines like this. When you receive any document from IMR, contact your attorney’s office at once and make sure they received a copy also.

So what’s the good news? In cases where the injured worker or attorney submits their own medical information and stays on top of the paperwork, the rate of UR decisions being overturned can double or even triple. While actual outcomes will always depend on the type of recommendation and the specific case facts, the best possible outcomes come from aggressively and affirmatively pursuing your case. We at the Law Offices of Maurice L. Abarr are uniquely qualified to guide you through this maze. Contact us for a free consultation.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Death Or Injury Easier To Prove In Workers’ Compensation Cases

Written by Maurice Abarr on . Posted in Workers Compensation

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The Supreme Court of California recently decided South Coast Framing Inc. v WCAB—an important case in workers’ compensation law. The decision clarifies how evidence should be weighed in workers’ compensation cases.

A carpenter working for South Coast Framing suffered neck and back injuries and a concussion while on the job. He was prescribed medications by both his Workers’ Compensation doctor and his personal physician—and tragically died of an accidental overdose. His family sought death benefits through the Workers’ Compensation system and a Workers’ Compensation Judge granted those death benefits. The Court of Appeal reversed that decision. Ultimately, the Supreme Court of California reversed that decision and reinstated the death benefit award.

While the medical evidence found that it was primarily because of the drugs prescribed by his personal physician, the medical expert conceded that at least one of the medications from the Workers’ Compensation doctor contributed to the overdose. Additionally, the medications prescribed by the personal physician were to help with sleep problems the deceased worker had started suffering since the work accident. The Workers’ Compensation Judge ruled, therefore, that the fatal overdose was tied to the work accident.

The Court of Appeal, on the other hand, ruled that there was a lack of evidence to support this finding. The issue is in the language of the actual Labor Code and that there are different standards of causation in workers’ compensation than in tort (personal injury) law. The Court of Appeal was using a standard more applicable to a suit brought in civil court—in that the impact of the medications from the workers’ compensation doctor were not “significant” enough to prove causation.

In its overturn, the California Supreme Court correctly pointed out that, because of the way the state’s labor code is written, the Court of Appeal applied the wrong standard for a death case. In the Workers’ Compensation system, it is sufficient to prove that employment is a contributing cause to the death—not the amount of the contribution. Furthermore, the Supreme Court ruled that a Workers’ Compensation Judge’s findings of fact are not subject to appellate review at all if the findings are supported by the totality of the evidence and of the record; the Court of Appeal is “not free to reweigh the evidence or substitute an inapplicable standard of review.”

The end result of all of this is that it helps clarify what the standard of causation is in a workers’ compensation cases. Although the decision specifically dealt with a family seeking death benefits for an injured worker, the clarified standards should help any worker trying to establish that an injury or illness is work related.

If you have a Workers’ Compensation legal issue, we at The Law Offices Of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free consultation.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Permanent Disability–A Somewhat Misleading Phrase

Written by Maurice Abarr on . Posted in Workers Compensation

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In the nearly 40 years that I have been representing those disabled, I have observed that the phrase “Permanent Disability” often misleads the victim of an injury into seeing himself/herself as permanently unable to work. A more correct characterization would be “Permanent Partial Disability”–i.e., some (but not all) loss of ability to perform the activities of daily living, including some work.

When the unsophisticated injury victim hears that he/she has “Permanent Disability,” often they start worrying about how they are going to survive without any ability to perform work so as to “make their living.” If it is a more minor injury, then clients tend to intuitively know that he/she still has the capability to do some work. The more seriously injured, however, can get confused when the doctors and lawyers start talking about their “Permanent Disability.”

In California Workers’ Compensation, “Permanent Partial Disability” can amount to anything between 1% and 99%. (In nearly 4 decades I have not had a 1% case but I have seen a few stipulations for as little as 3% since the 2004 Workers’ Compensation reforms were enacted (thanks to Governor Schwarzenegger). At the other extreme, I have not seen a 99% case but I have seen a few that were close to it.

If the injured person is found to have “Permanent Total Disability,” then he/she has been found to be 100% disabled. In the world of California Workers’ Compensation, that means that he/she is seen as being someone who will not likely work in the future. While that is the theory–100% means you will never work again–I have seen cases where a person with 100% disability did in fact return to the work force. This does not happen frequently. Usually it comes about because of a combination of factors, not the least of which is the injured person’s dedication to his/her own self-rehabilitation over time. With sufficient motivation, “miracles” can happen.

So, if you are the victim of an injury and the doctors (and lawyers) start talking about your “Permanent Disability,” you need to start asking what that means in your particular circumstance. It may mean a small check will eventually end up in your mailbox to compensate (another word that may be deserving of a separate blog) you for your loss. If you have lost much of your ability to do the work you have always done, you need to have a serious discussion with a qualified attorney at The Law Offices of Maurice L. Abarr, Esq. about what can be done to provide you with as much security for your future as is possible within the context of your case. We’re at your disposal.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

A Change In Perspective: Settlement Of Future Medical Benefits

Written by Maurice Abarr on . Posted in Workers Compensation

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As I have alluded to in previous blog articles, the process an injured worker in California must go through in order to access medical care has become a maze of tedious regulations and timelines. It seems that the employer and insurance carriers’ “due process” rights are being given a greater priority than simply providing medical care to injured workers.

Easily 20% of my time (and probably 35% of my staff’s time) is now spent dealing with Utilization Review(s) (UR) denying our clients access to medical care. Before 2013, we had to go to a Qualified Medical Evaluator (QME) from a Panel of three doctors issued by the Division of Workers’ Compensation Medical Unit in Oakland, California. That process would ordinarily take up to three months and then we might still need to go to a hearing which would take another one to two months. In a word, maddening.

In the latest “reform” of the Workers’ Compensation laws near the end of 2012, the Panel QME process was eliminated for deciding “medical necessity” disputes (i.e., Should the injured worker get the treatment his treating doctor prescribed or not?). Instead, a new process called Independent Medical Review (IMR) has been put in place. IMR is conducted by a company called Maximus, a large organization that has been doing reviews of medical-necessity disputes for the federal government and private health insurers for many years. The reality of this new process is:

  • The name of the doctor doing the review is not disclosed.
  • There is almost no opportunity to appeal an adverse IMR decision (which upheld the UR decision to deny the injured worker the care his doctor prescribed).
  • Even if you do appeal—and manage to prevail—all that happens is that your issue is put through the IMR process all over again with a different reviewing doctor.
  • The injured worker is “stuck” with that denial of medical care for 1 year, unless there has been a material change in circumstances.

It appears that at least 70% of the UR denials of medical treatment are being UPHELD by the IMR process. In my experience, the percentage is even higher.

For more than 30 years Workers’ Compensation practice, I have generally urged my clients to hold on to their rights for future medical care under the Workers’ Compensation system and not settle those rights (i.e., “sell their rights to future medical”). Because of this latest IMR process, my advice has evolved. There are still some clients with medical needs that have little likelihood of coverage through other means (e.g., Medicare). For them, I believe it’s prudent to retain their rights to future medical in Workers’ Compensation—despite the problems we see with the IMR process.

In general, my opinion now is: Settle the future medical. Get what you can out of the Workers’ Compensation carrier or claims administrator and look for alternative means for medical coverage outside of the Workers’ Compensation system. The Workers’ Compensation system, especially with respect to current and future medical care, has been reduced to a farce.

The only rational approach is to get out of the Workers’ Compensation system as quickly as possible. There is little, if any, advantage to remain in the system as currently constituted for your future medical care.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Settlement of Future Medical in Workers’ Compensation (Part I): The MSA Problem

Written by Maurice Abarr on . Posted in Workers Compensation

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Before the year 2000, many injured workers settled their cases for a lump sum of money and then (later) paid for the treatment of their old work injury through Medicare. Medicare paid for this treatment–at times expensive treatment involving multiple surgeries–even though the injured worker had “sold” his right to future medical care when he settled his Workers’ Compensation case. To put it simply, the injured worker took money from the employer’s Workers’ Compensation claims administrator or insurance company but did not use it to pay for his future medical treatment. This happened with some frequency–even though there had been a federal law which required anyone settling their injury case to take into consideration the interests of Medicare which had been on the books for several years.

Note: There is a concept in law which precludes an injury victim from “double-dipping”(i.e., getting paid twice for the same injury claim). There are usually two (2) main parts to the settlement of an injury or disability claim: (1) money to compensate for mental and physical losses (in Workers’ Compensation this usually referred to simply as Permanent Disability); and, (2) (in Workers’ Compensation claims) money to cover likely future medical needs. If the injured worker is paid money by the Workers’ Compensation claims administrator or carrier for the stated purpose of covering the injured worker’s future medical needs but later gets Medicare to cover the future medical costs attributable to injuries covered in the previous settlement, he or she is getting “paid” twice for his future medical costs–this is “double-dipping”. 

Before 2000, an injured worker with a low back problem that his doctors were telling him required surgery might settle his Workers’ Compensation case and receive, for example, $30,000 in addition to the value of his Permanent Partial Disability. The additional $30,000 would be characterized as being for “future medical” treatment The same worker who settled his future medical for $30,000 then might wait a few years, until he is entitled to Medicare benefits, and then begin treatment with a doctor who accepted Medicare. Later, that doctor would request authorization from Medicare to proceed with low-back surgery. If the clinical findings supported the surgery, Medicare would ordinarily give the doctor authorization to proceed with the surgery. The worker may have spent the money from the settlement of his future medical or he may simply be saving it. In either case it violated a federal law which has been in place for several years, but was not enforced until 2000.

This pattern of “double-dipping” had gone on for many years. The Federal Government was aware of the practice of injured workers using the money from the settlement of their future medical for things other than their future medical care. But nothing was done about it until 2000 when the Bush Administration urged Medicare to start enforcing the law.

Some injured workers have objected: “I paid into those benefits. That is my money. I am entitled to get my medical taken care of through Medicare because I am on Social Security Disability and it is a benefit I have earned with my years of work.” While one might agree with these sentiments, it’s inconsistent with the interpretation of federal law. Federal law says that Medicare is a “Secondary Payor”–which means if there is someone primarily responsible for the payment of the medical costs incurred, then that party must pay for the current and future medical costs—instead of Medicare. Medicare only pays when there is no primary party responsible for the medical costs (or when the funds available from the primary party have been exhausted for medical care). So, in the example referenced above, the federal law interpreting the right of Medicare to insist that its “interests be taken into consideration” when a Workers’ Compensation claim is settled requires that the settling worker spend the $30,000 he realized from his settlement towards the treatment of his back before he asks Medicare to pay any of the medical bills associated with his back.

To further complicate matters, the warning that was issued by Medicare in 2000 to the attorneys in California representing injured workers evoked panic in the insurance industry. Almost immediately, Workers’ Compensation insurance companies and third-party administrators began insisting that any global settlement involving significant money for future medical must include a “Medicare Set Aside” account (MSA). If the total settlement exceeded $25,000 some carriers insisted–and still insist–that the MSA also be approved by the Center for Medicare/Medicaid Services (CMS).

So, what does this mean? After the injured worker is essentially released or declared Permanent and Stationary (P&S) or at Maximum Medical Improvement (MMI), the medical billings for the previous two (2) years on the Workers’ Compensation claim involved are submitted to a private vendor selected by the insurer or administrator. Based upon apparent future medical needs of the injured worker, as defined by the evaluating and treating doctors and his life expectancy, the future costs of medical treatment that would otherwise be covered by Medicare is projected–based upon Medicare rates. That projected number is then reduced to present value.

After the essential calculations have been made, an amount of money is determined to be needed to fund–either completely at one time or with periodic payments–an MSA that will cover future medical needs that are ordinarily covered by Medicare, at Medicare rates. Once this number has been calculated–assuming the parties still wish to proceed with a global settlement*–the proposed MSA is submitted to CMS for its approval.

Here’s the real problem: CMS can take several months to review and either accept or reject with suggested modification the proposed MSA. While the speed of approvals seems to be gradually increasing, any problems with the Federal budget may impact the efficiency of CMS’ approval process.

The Options

  • Some cases can be settled for a lump sum for the Permanent Partial Disability alone–leaving the future medical still “open” as a right in the Workers’ Compensation system. In the right case this can work…but usually not.
  • Settle the case with a calculated MSA included as part of the terms of the settlement document and simply not submit the MSA to CMS for approval. Some carriers are becoming more open to his approach. It depends on the size of the settlement, the nature of the injury (and likely future needs), and who the carrier is.

If the carrier balks at settlement because the MSA number is “too high” in their estimate, sometimes you can legitimately work with the carrier and the evaluating doctors to obtain a lower MSA number. If CMS approves the MSA, the injured worker is usually protected for the future. (Caveat: If CMS is given bogus information about prospective cost of future medical this protection could be lost. It is important to review what information is being provided to CMS.)

Finally, it is usually advisable for the injured worker to endure the delay that occurs with the MSA and CMS procedures. If CMS approves the MSA and the worker follows the rules with how he spends the money in the MSA account, CMS is in effect saying: We have your back. If the vendor and we at CMS got it wrong…if you follow the rules and have to spend all your MSA money for medicals relating to your settled case, CMS will step in and pick up the slack…Medicare will pay your future medical after you spend all the MSA money for medical treatment covered by Medicare at Medicare rates. This is a good thing. It provides ultimate security for the injured worker and his future.

The Bottom Line

The disappointment, of course, is that you do not get to spend that “extra” money that you get from settling your rights to future medical. However, you are out of the sometimes horrible delays and frustrations of trying to get medical treatment in the Comp system, you have the security of money for future medical and, in the event that you do not spend the money in the MSA account, it will usually revert to your heirs. Not the most positive point possibly but one assumes you’d rather that your family got the money than the insurance company.


* Unfortunately, some settlement “deals” simply fall apart when the MSA number is unusually high. Essentially, the insurance company or administrator says to itself–maybe to the injured worker as well–we are never paying that. We will fight the medical costs in the Workers’ Compensation system and never pay what CMS expects for an MSA. This whole conundrum will be the subject of an upcoming blog, “Settlement of Future Medical in Workers’ Compensation (Part II): Do I Stay Or Do I Go?”

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.


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