11.
I am an adjuster/defense attorney; what do I need to know to protect the
employer?
According to the Medicare
Secondary Payer Act (MSPA), the employer is equally responsible as the claimant
for ensuring that Medicare’s interests are protected at the time a workers’
compensation (WC) case is settled. But the reality is that the employer has the
deep pocket and chances are that the claimant will not have the financial means
to satisfy any claims by Medicare. Therefore, it would be easier for The
Centers for Medicare and Medicaid Services (CMS) to enforce the MSPA against the
employer.
The adjuster/defense
attorney should determine if a claimant is Medicare eligible (or about to be
Medicare eligible) early on in the workers’ comp case. If this is the case,
then the adjuster/defense attorney should begin the Medicare Set-aside (MSA)
evaluation process.
The adjuster/defense
attorney should also be prepared to add standard language to the final
settlement agreement that outlines the steps taken by the parties to protect
Medicare’s interests. If an MSA has been approved by the Centers for Medicare
and Medicare Services (CMS), it could be beneficial to attach those documents as
exhibits.
If an MSA is being
established, but not approved by CMS, the amount of the MSA and some details
about the MSA could be included in the settlement documents.
The reason these steps are
taken is that in the event CMS contacts the employer about any possible claim,
the employer (or adjuster/defense attorney) should be able to send the final
settlement agreement to CMS as evidence that Medicare’s interests were
protected. The more detailed the settlement agreement, the less likely CMS is
to pursue its claim.
BACK
All of the content was
prepared by Michael R. Merlino II, an attorney in Georgia who focuses on his
practice primarily on MSAs. He prepares MSAs for many large self-insureds and
insurance companies. If you have questions, he can be contacted at 770-374-3697
or
mmerlino@gmail.com. He also has a website devoted to MSAs, which is updated
frequently: www.wcmsainfo.com
© 2007
Wisconsin Association of Worker’s Compensation Attorneys, Inc, and Michael R.
Merlino II. All rights reserved.
