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  1. #1
    Join Date
    Apr 2007
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    NorCal
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    Question Compromise and Release Q?

    Injury was 10yrs ago in California. Obtaining medical care has gotten increasingly difficult to impossible. Insurance company offered compromise and release option. I expressed interest and the original offer was $10 (for sake of argument). My counter offer was $70. We went back and forth and we have agreed to $40. The documents are being prepared by a local law firm and will be going before judge to finalize the deal soon. I do not have a lawyer.

    Is the law firm that is drawing up the documents doing so on my behalf? Are they being paid? By whom? Is the judge just there to be witness to the signing, or does he have the power to increase or decrease the $$ amount of the agreement? Can I / should I prepare documents or arguments in my favor to sway the judge?

    Thanks
    Mike
    Last edited by tzr916; 03-30-2009 at 03:48 PM.

  2. #2
    Join Date
    Feb 2007
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    Calif
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    Default Re: Compromise and Release Q?

    You aren't providing much info to base an answer on here...

    Who provided the law firm drawing up the documents...?
    If it's the CA/IC, then the fees are paid by them.
    If you don't have an attorney, there would be NO fees taken from your award.

    It's not really a matter of much negotiation...the PD indemnity, the money awarded according to your rating, is set by statute. The value of your future medical is a SWAG at best..wild ass guess...

    The issues you should look for are that all medical bills have been accounted for, and paid or will be paid by the IC, that all of your self procured treatment bills have been reimbursed, if there are any...that all mileage etc has been addressed.

    It sounds like the final dollar amount has been set though... it would also be important to get the allocations right. AND< you need/must sign a release of information for your SSA records to be provided to the CA/IC... CMS/Medicare requires this...and the settlement will be reported to CMS... when you become Medicare eligible, Medicare will withold benefits until you can prove all of the medical money, and interest, has been exhausted on treatment to your injury. Don't let anyone tell you this is not necessary...it IS.

    The documents must be submitted to the WCAB judge for a review to adequacy...yes, the judge can throw the agreement back...and/or change the numbers... .usually upward to reflect your needs vs the ER/IC. Doesn't happen often, but it can.

    You should also make sure there are time restraints included in the language to reflect when you are to receive the check. Generally that would be 30 days from the judges approval. If the check is paid, you waive interest/penalties. If it's late even by one day... there is 7% interest, and a 10% self imposed penalty due.

    You should know that once you accept the money for future medical treatment ALL additional treatment to this injury will be out of your pocket...no other IC is liable for the treatment here... and it would be illegal for you to shift that liability to another party.

    There could be other issues, but based on your information... that's about as far as I can go...If you are currently reveiving SSA/SSDI/VA or other govt' benefits, Or if you anticipate becomming Medicare eligible within 30 months of the settlement... you cannot settle this claim until you have taken the steps to protect Medicare interests. That may include a WC Medicare Setaside Arrangement.

  3. #3
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    Apr 2007
    Location
    NorCal
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    Default Re: Compromise and Release Q?

    Thanks. At time of injury I was delcared 22% disabled and awarded cash $10 (for sake of argument) and future medical. My care has changed hands many times and eventually the insurance company stopped paying the bills and refusing care so I explored compromise and release option. The insurance company has said (in emails) that they will be settling any unpaid bills separately and the medical provider has never held me responsible (they actually wrote them off as tax loss). The insurance company setup the law firm to draw up the compromise and release documents. I am back to work and can function with regular treatment. Medicare is 25yrs away. Will the government really keep track of whether the $$ was exhausted? That's wild!

    ...it would also be important to get the allocations right...
    I don't know what is Allocation Rights, CMS, SSA???

    ...yes, the judge can throw the agreement back...and/or change the numbers... .usually upward to reflect your needs vs the ER/IC...
    What is ER/IC? Should I speak up and tell the judge my needs are more than what the agreement offers? If judge increases the $$, can the insurance company refuse to sign?

  4. #4
    Join Date
    Sep 2008
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    132

    Default Re: Compromise and Release Q?

    If your 25 years away from Medicare, it shouldn't be an issue, they only are tracking settlements over $250k right now, although there are some new rules coming in July, but who knows, Medicare might not be around in 25 years, so I wouldn't worry about it.

    Bottom line is you can speak up before the Judge, but the IC is under no obligation to agree to a higher amount. It sounds like you already agreed to an amount, so the IC may not agree to more. Your call. Good luck.

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
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    18,021

    Default Re: Compromise and Release Q?

    --------------------------------------------------------------------------------
    If your 25 years away from Medicare, it shouldn't be an issue, they only are tracking settlements over $250k right now, although there are some new rules coming in July, but who knows, Medicare might not be around in 25 years, so I wouldn't worry about it.
    That is SO wrong on so many levels. ''they only are tracking settlements over $250k right now'', This isn't about the submission of a setaside proposal...or the threashold that triggers the need for a proposal. It's about CYA...
    Any CA that doesn't take the time to get the SSA records is foolish...Medicare doesn't have any SOL on reimbursement for conditional payments. And taking an IW's word that Medicare hasn't been billed for any services isn't sufficient.

    YES, Medicare WILL ''track'' the settlement...that is what computers do these days...and your SSA/Social Security Number will be flagged with the information. The MSPA/Medicare Secondary Payor Act has been in affect for over 20 years, that the 'new' reporting rules are only now being addressed does not relieve you or any other IW or injured party from addressing CMS/Medicare interests. You MUST get a release of your SSA records to determine you status and if necessary get a zero allocation from CMS (Centers for Medicare/Medicade Services) regarding any need for a setaside.

    At time of injury I was delcared 22% disabled and awarded cash $10 (for sake of argument) and future medical. My care has changed hands many times and eventually the insurance company stopped paying the bills and refusing care so I explored compromise and release option.
    Due to the time here, your PD indemnity has been fully satisfied, and the money you receive now is ALL for future medical reimbursement. ALL the money should be deposited in an interest bearing account and used only for treatment to this injury/body part. Including interest. Yes, Medicare will demand you prove you have exhausted all the money, in 25 years when you become eligible.
    WHO is to say that in the next 5 years you have to apply for SSDI/disabiltiy benefits for whatever reason...? (hopefully that will not be the case...)

    I don't know what is Allocation Rights, CMS, SSA???
    It's not ''allocations rights'', it get the allocations right... this is how the money is divvied up in the agreement... $'s for indemnity (which appearantly you don't have here) $ for future medical and $ for any other considerations...past due TTD or other benefits that have yet to be addressed in the claim.

    [QUOTE]What is ER/IC? Should I speak up and tell the judge my needs are more than what the agreement offers? If judge increases the $$, can the insurance company refuse to sign? [QUOTE]It would be unlikely for the judge to simply increase the dollars because you don't feel the agreement is adequate after talking to other people. If you don't like the settlement now....don't sign off on the documents. There is nothing anyone can do to force this.

    My care has changed hands many times and eventually the insurance company stopped paying the bills and refusing care so I explored compromise and release option.
    Medical treatment is always ''difficult'' in comp. With the changes in the laws the ER/employER, and/or IC/Insurance Company has the right to transfer your care to a doctor in their MPN/network. ALL treatment is subject to the ACOEM/MTUS treatment guides, and the UR/Utilization Review process. Your PTP/doctor is the one charged with developing a treatment plan, and appealing any denials.

    The IC is agreeing to the C&R because it is in their favor...not yours. Your claim has actually been 'settled' long ago with the indemnity you received. This money for medical you 'might' need is 'go away', and save us/IC the money of administering your claim. It's not money to do with as you please...only for medical treatment to your injury.

    BTW... this isn't going to any judge until you and the IC agree to the terms, and sign off on the settlement documents.

  6. #6
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    Apr 2007
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    NorCal
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    Default Re: Compromise and Release Q?

    Yes, Medicare will demand you prove you have exhausted all the money, in 25 years when you become eligible. WHO is to say that in the next 5 years you have to apply for SSDI/disabiltiy benefits for whatever reason...?
    I had no idea about this. What does a workers comp payout from a private insurance company have to do with future eligibility for government medicare, sdi, disability benefits?

  7. #7
    Join Date
    Sep 2008
    Posts
    132

    Default Re: Compromise and Release Q?

    Quote Quoting tzr916 View Post
    I had no idea about this. What does a workers comp payout from a private insurance company have to do with future eligibility for government medicare, sdi, disability benefits?
    Well, BVIA believes himself to be a Medicare expert, but I can tell you these are settled all the time without worrying about this issue on anyone not currently eligible for Medicare, especially when the settlement is far below the $250k threshold that requires a Medicare Set Aside. Medicare is far more likely to come back against the IC than the individual who settled a claim 25 years before they were even eligible for Medicare. Just my two cents from someone who actually works in the Industry.

  8. #8
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    Apr 2007
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    NorCal
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    Default Re: Compromise and Release Q?

    Quote Quoting Big Dog View Post
    ...Medicare is far more likely to come back against the IC than the individual who settled a claim 25 years before they were even eligible for Medicare...
    Let's try again. Why? Why is Medicare concerned with a payout from a private insurance company? If you have to, go ahead and pretend it is more than $250k and only a few years from medicare eligibility...

  9. #9
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    Location
    Calif
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    Default Re: Compromise and Release Q?

    Let's try again. Why? Why is Medicare concerned with a payout from a private insurance company? If you have to, go ahead and pretend it is more than $250k and only a few years from medicare eligibility...
    Because Medicare is always secondary to another party that will, or can be expected to pay for the medical in a WC, or PI claim.
    The money you are receiving now, as the PD indemnity has been satisfied, is for the future medical needs you may face. This money is not a part of your ''settlement'' for the disability/impairment you suffered due to the injury. If it was determined you no longer needed ANY additional treatment, you would not receive this money at all.
    Future Medical Services
    The burden of future medical expenses in WC cases may not be shifted to Medicare.42 C.F.R. 411.46 and 411.47 provide that Medicare's interest must be considered in WC settlements, when future medical expenses are a component of the settlement.

    Because Medicare does not pay for an individual WC related medical services when the individual receives a WC settlement that includes funds for future medical expenses, it is in the best interest of the individual to consider Medicare at the time of settlement. For this reason, CMS recommends that parties to a WC settlement set aside funds, otherwise known as Workers' Compensation Medicare Set-aside Arrangements (WCMSAs) for all future medical services related to the WC injury or illness/disease that would otherwise be reimbursable by Medicare.
    http://www.cms.hhs.gov/WorkersCompAg....asp#TopOfPage
    If you receive money in any settlement that is allocated to medical reimbursement, past or future needs, that money must be used for treatment to your injury, including interest, in the eyes of CMS/Medicare. And they will ask you to prove you have exhausted that money before Medicare will provide benefits.
    To determine IF you actually need a WCMSA/setaside proposal, you can go to the chart here...http://www.wcc.ne.gov/legal/medicare...guidelines.pdf. I doubt you actually do need one. But that doesn't mean you can/should spend the money elsewhere.
    but I can tell you these are settled all the time without worrying about this issue on anyone not currently eligible for Medicare, especially when the settlement is far below the $250k threshold that requires a Medicare Set Aside.
    Regardless of your involvement every day, this conversation is not about a setaside proposal, but the need for the IW to sign a release of information of SSA records. That you/your ER choose not to CYA in this regard has little to do with the issues here. There is no threashold of any amount that releives the parties from protecting Medicare interests.
    Whether the money is defined as a WCMSA or otherwise, the money received for FMC should be deposited in an interest bearing account.
    Medicare might not be around in 25 years, so I wouldn't worry about it.
    That statement is exactly the reason the rules have been changed. Because CA/IC's encourage the applicant to shift the liability for future medical care to Medicare/taxpayers...and that is illegal.

    Under the current rules, only the claims where the applicant is Medicare eligible had/have to be reported to CMS... after July 1st, all claims that include medical treatment must be reported.

  10. #10
    Join Date
    Apr 2007
    Location
    NorCal
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    Default Re: Compromise and Release Q?

    Because Medicare is always secondary to another party that will, or can be expected to pay for the medical in a WC, or PI claim
    So pretend I injure my pinky toe that requires future medical care. Then I finalize a compromise and release for a million dollars only one year prior to being medicare eligible. Are you saying if I need a chest xray or break my arm, that medicare expects me to use my compromise and release money (that was set aside for my pinky toe) to pay for it?

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