Medical Investigation & Argument Wins Over CMS

January 2019

By: Marina Takagi Cobb

The Firm was defending a Comp case brought by a petitioner who initially asserted an injury to his foot. While diagnostic imaging of the right foot and ankle showed no fractures, petitioner continued to complain to his orthopedic surgeon of not only right foot pain but, also, right knee discomfort. He asserted he had to “twist(ed) the leg” in the accident. The surgeon diagnosed a right foot crush injury, a right foot contusion, and a right knee sprain/strain, for which the petitioner underwent conservative treatment. Within a month of the alleged incident, the orthopedic surgeon noting the petitioner was exaggerating symptoms and complaints, released him from treatment, and sent him back to full duty.

The petitioner then sought a second opinion from another orthopedic physician. This time, the petitioner alleged right hip pain that was exacerbated by the work incident. The petitioner also complained of shoulder pain and low back pain.

Petitioner underwent minimal care for the shoulder and low back pain, but his focus on his hip was ongoing. Ultimately, several different recommendations were made for its care. One physician prescribed a total right hip replacement, while another recommended no further treatment and released the petitioner from care.

Even given the disparate medical opinions, Respondent’s potential future medical exposure amounted to over $65,000.00 including a hip replacement, future maintenance treatment, continued medications for the petitioner’s lifetime, and significant after care following the surgery, given the petitioner’s age. A submission to MSA was necessary to confirm in writing with Medicare that its interests were considered and that our client would not be responsible for excessive future medical treatment pursuant to Federal law. Notwithstanding the possibility of future care, BCM recommended a zero MSA submission to assist in further mitigating conditional payments exposure by having one entity of Medicare conclude that no future medical should be set-aside as related to this claim.

Cataloguing all the discrepancies uncovered in its investigation, the BCM Medicare Compliance Department highlighted them in a detailed memorandum to CMS. Specifically, it argued that the petitioner suffered only a right foot injury for which he had completed treatment and thereafter, per his doctor, exaggerated his symptoms. Further, his claim that the right hip injury, shoulder, and low back complaints were caused by the right foot crush injury was balderdash, given his first complaints and the location of the injury. Finally, even if the petitioner actually injured his hip, and could prove it was connected to the work accident, he had refused surgery and had been released from care.

Given the totality of the medical evidence, and the legal reasoning that Respondent was liable only for reasonable and necessary medical expenses that are causally related to the alleged accident under Section 8(a) of the Illinois Workers’ Compensation Act, CMS approved the zero MSA.

This case shows that comprehensive medical investigation and argument are crucial in successfully mitigating future medical exposure.