Sunday, September 27, 2009
Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.