What happens when Medicare Set-aside Agreement treatment occurs before the approval of a Compromise and Release? That is what appears to have happened in the case of Carolyn Christian v. TJ Maxx, as covered excellently by Jennifer C. Jordan, Esq.
Medicare Set-aside Agreements are a paralyzing element in California workers’ compensation. Applicants’ attorneys and defense lawyers must send away for an agreement as to the future medical treatment of an applicant prior to settling, and wait for various amounts of time before approval by the federal government. Perhaps because workers’ compensation benefits are so often used as a supplement to retirement income at the end of a workers’ career, MSA problems are close to the top of the list of problems with the system. WCDefenseCA has had occasion to cover this topic a time or two before.
In Christian, applicant entered into a compromise and release agreement with defendant which included an MSA. One of the items listed on the MSA, which defendant was including in the compromise and release amount, was knee replacement surgery. Well, after starting the MSA process and before getting approval of the compromise and release agreement, applicant had the procedure performed, and was looking forward to receiving the same benefit twice – both the treatment and the cost of the treatment.
The defense had other ideas about how this works. Seeking to have the C&R set aside as either the result of a mutual mistake (at best), or the product of fraud (at worst), the defense met with resistance from the workers’ compensation Judge and the C&R was not disturbed.
The WCJ reasoned that applicant might need a second knee replacement surgery in the future, but the defendant appealed, and the Workers’ Compensation Appeals Board ordered additional hearings on the matter.
Perhaps we should begin including terms in our compromise and release agreements to the effect that the amount due after approval shall be reduced by the amount of MSA contemplated treatment received before the date of approval?