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  1. #1
    Join Date
    Nov 2015
    Posts
    7

    Default How Long Does a Proposed WCMSA Remain Valid

    Hello - I'm a newbee and have a question about WCMSA's. I was injured on the job in 2008 and have been receiving W.C. benefits since. My injuries consisted of my left knee, left shoulder, left elbow and hands and I remain under an open award. In 2011 I took a fall and injured my right elbow which required surgery to repair, and in 2012 injured my right shoulder as a result of my continued problems with my left knee and its giving way unpredictably. These additional injuries were awarded by the commission as a compensable consequence of the original injuries. The carrier now has offered to settle and claims that they must use the WCMSA they acquired back in 2011 which does not reflect the additional injuries awarded, and only deals with the original 2008 injuries when considering future medical needs. I have searched the web for an answer to this situation but have not found an answer that speaks to my question. Another aspect is that I was not negotiating with the carrier back in 2011 to settle and have no idea why they generated the 2011 WCMSA in the first place. The carrier also wants for me to accept if we settle an annuity as opposed to a lump sum which is the only way I would accept funding for the WCMSA. The 2011 amount approved for the WCMSA is $70,000 which definitely does not take into consideration the additional injuries awarded by the commission. BTW I am a Medicare recipient.

    If someone can shine a light on this I would greatly appreciate it.

  2. #2
    Join Date
    Oct 1971
    Posts
    5,138

    Default Re: Is a Wcmsa Generated in 2011 Still Valid

    You need to have your case evaluated by a lawyer who specializes in worker comp in your state.

    Medicare is weird, they have conflicting rules.
    I do believe they'll have to resubmit a new MSA proposal to include the additional injuries, sounds like they're trying to pull a fast one.
    Don't agree to anything until you consult a lawyer, this whole deal sounds weird.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  3. #3
    Join Date
    Feb 2007
    Location
    831 East Morehead St., Ste 355, Charlotte, NC 28202
    Posts
    3,783

    Default Re: Is a Wcmsa Generated in 2011 Still Valid

    It is my understanding that CMS will want a proposed Medicare Set Aside that has been created or updated within the past 6 months. My understanding is that they will not approve one that old. But, the insurance carrier wants them to, so that the carrier can short you on the future meds.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  4. #4
    Join Date
    Nov 2015
    Posts
    7

    Default Re: Is a Wcmsa Generated in 2011 Still Valid

    Quote Quoting complwyr View Post
    It is my understanding that CMS will want a proposed Medicare Set Aside that has been created or updated within the past 6 months. My understanding is that they will not approve one that old. But, the insurance carrier wants them to, so that the carrier can short you on the future meds.
    Thank you for responding to my dilemma as I've received conflicting information on this question from not only the attorney for the carrier but also my attorney. I too believe that there needs to be a new MSA submitted to CMS for approval. However, the attorney for the carrier insists that once the 2011 MSA was generated and submitted to CMS there can be no re-submission even though there are post 2008/2011 awarded injuries not accounted for. The crazy thing about it is there was no negotiation about a settlement in 2011 for an MSA to be generated and/or submitted in the first place. My question basically is , can the carrier be forced to submit a new MSA to CMS? The other aspect of this I don't quite get, is the carriers adamant insistence for the funds an amount of $70,000 depicted in the 2011 MSA to be put in a structured annuity to be paid out in yearly increments over the next 17 years based on the 2011 projection which I will not accept and believe I have the right to a lump sum which would be self administered from an interest bearing account of my choosing. This is aside from the disagreement over the 2011 MSA which I refuse to accept as valid.

    Thanks again and also to Tony for the responses.

    DRM

  5. #5
    Join Date
    Oct 1971
    Posts
    5,138

    Default Re: Is a Wcmsa Generated in 2011 Still Valid

    Quote Quoting DRM View Post
    Thank you for responding to my dilemma as I've received conflicting information on this question from not only the attorney for the carrier but also my attorney. I too believe that there needs to be a new MSA submitted to CMS for approval. However, the attorney for the carrier insists that once the 2011 MSA was generated and submitted to CMS there can be no re-submission even though there are post 2008/2011 awarded injuries not accounted for. The crazy thing about it is there was no negotiation about a settlement in 2011 for an MSA to be generated and/or submitted in the first place. My question basically is , can the carrier be forced to submit a new MSA to CMS? The other aspect of this I don't quite get, is the carriers adamant insistence for the funds an amount of $70,000 depicted in the 2011 MSA to be put in a structured annuity to be paid out in yearly increments over the next 17 years based on the 2011 projection which I will not accept and believe I have the right to a lump sum which would be self administered from an interest bearing account of my choosing. This is aside from the disagreement over the 2011 MSA which I refuse to accept as valid.

    Thanks again and also to Tony for the responses.

    DRM
    Someone's misleading you, don't agree to this deal.
    One of the elements CMS uses to figure the amount of a Set Aside is the amount paid in the two year period after the condition has stabilized (in other words the total medical expenses in the last two years.)

    Criteria for Determining Whether a Lump Sum or Structured Settlement Sufficiently Takes into Account Medicare’s Interests
    (Ref: 7/23/01 Memo Q5)
    6. Prior medical expenses paid by WC due to the injury or illness in the one or two year period after the condition has stabilized
    https://www.cms.gov/Medicare/Coordin...reasonable.pdf

    CMS Set Aside Overview:
    https://www.cms.gov/Medicare/Coordin...-Overview.html

    the attorney for the carrier insists that once the 2011 MSA was generated and submitted to CMS there can be no re-submission
    That's an outright lie.
    You can resubmit with new facts until CMS either accepts or denies the proposal, nothing is final until the case is settled.


    The crazy thing about it is there was no negotiation about a settlement in 2011 for an MSA to be generated and/or submitted in the first place.
    That's ridiculous, these guys can't submit an MSA proposal at their convenience, there are rules they must abide by.
    They have to wait until you're Medicare Eligible and intend to settle your case - the very idea is silly, this isn't anything goes.

    CMS will only review new WCMSA proposals that meet the following criteria:
    •The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
    •The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00

    At the end of the day it doesn't matter anyway, it's not up to you or the carrier.
    CMS has your medical records, they'll simply deny this ridiculous proposal and counter with a realistic figure.
    CMS isn't stupid, they're not about to let these guys rip them or you off.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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