Two Heads Are Better Than One

June 2021

By: Markeya A. Fowler and Carolyn P. Murray, MSCC

Two heads are better than one! We have all heard this old adage and found it to be true more often than not. Brady, Connolly & Masuda, P.C. is proud to share one such case where two practice groups came together to achieve a great result.

One of the hardest to contain and costliest parts of any workers’ compensation case is the exposure for future medical. That task becomes even more arduous when the claimant is a Medicare recipient. Our attorneys, Markeya Fowler (Workers’ Compensation Litigator) and Carolyn Murray (Certified Medicare Consultant) were faced with this task in a work injury claim. Together, they formulated and implemented a strategy which completely mitigated the future medical exposure for the client.

The claimant alleged that he was involved in two accidents occurring a month apart. He claimed an injury to his shoulder on June 11, 2012 while removing baseboards and to his bilateral hands on July 12, 2012 while prying out tile. As the case developed, we were able to identify evidence that called into the question the claimant’s credibility, as well as the alleged mechanism of injury.

Specifically, there were no indications that the claimant reported either injury to his supervisor and he continued to work full duty subsequent to both accidents. There was also a delay in treatment, as the claimant did not seek treatment for the shoulder for two months after the first accident. Even when he did finally present for treatment on August 30, 2012, he only reported an injury to his hands when he placed them awkwardly while working. He did not report an injury to his shoulder. In fact, he did not seek treatment for his shoulder for another month.

Armed with the inconsistencies in the medical records and a lack of notice of the accidents to the employer, we obtained an Independent Medical Examination. The IME doctor opined that if the history provided was accurate, the accident could cause the injury to the left shoulder. However, the claimant reported two different mechanisms of injuries to his bilateral hands. This caused the doctor to question the facts of the accident. The claimant reported to the doctor that he injured his hands while prying tile but reported to his treating physician that it was caused by an awkward placement of his hands. The doctor opined that the accident did not cause or aggravate the claimant’s bilateral carpal tunnel syndrome.

Despite the denial, the claimant continued his treatment, moving forward with surgery to the shoulder and to the left hand. The claimant was released from care eight months later on April 23, 2013 with a recommendation for surgery for the right hand. As the parties hoped to settle the claims, initial strategy involved arguing for a $0.00 Workers’ Compensation Medicare Set-Aside (WCMSA) based upon the employer’s denial of liability of the claimant’s workers’ compensation claims. With the knowledge that the Centers for Medicare and Medicaid Services (CMS) may not accept our legal dispute, a $15,199.12 allocation was proposed to satisfy Medicare’s interests with respect to the disputed right hand injury. CMS issued an approval letter for a WCMSA in the amount of $17,110.00. This amount included future medical treatment consisting of right carpal tunnel orthopedic visits, x-rays of the right hand, MRIs of the right hand, physical therapy and EMG/NCV studies of the right hand. The approval letter also indicated that no further treatment was needed for the left shoulder and left hand as of April 15, 2013, relying on the treating doctor’s opinion that no further treatment was necessary.

With the $17,110.00 proposed MSA allocation for the right hand, we attempted to resolve this matter on disputed basis without having to pay for the disputed medical treatment related to the bilateral carpal tunnel injury and future medical for the right hand. After several attempts at settlement were unsuccessful, trial was imminent.

Our trial strategy was to dispute all injuries based on notice and accident defenses. Depending on the claimant’s testimony, we also intended to call his credibility into question to dispute his account of both accidents. While that would aid in mitigating the trial exposure for past due benefits, we wanted to ensure that the client would not have to pay for the previously approved WCMSA for this disputed treatment. The strategy was in place: once our workers’ compensation team proved at trial that claimant did not sustain a compensable accident to his bilateral hands and failed to provide adequate notice, our Medicare team would file for an amended review of the previously approved WCMSA, proposing that CMS approve a $0.00 allocation this time. 

While a WCMSA Amended Review is not a common approach and requires a specific fact pattern, the attorneys handling this case from the Workers’ Compensation and Medicare perspectives were able to determine that our case met the criteria and develop a strategy. Our united approach paid off, and on March 26, 2020, the Illinois Workers’ Compensation Commission issued a decision finding that the claimant’s bilateral hand injury was not related to the work incident of July 12, 2012. Based upon the favorable trial outcome, BCM’s Medicare attorneys submitted the $0.00 WCMSA proposal under the Amended Review process.

In addition to meeting the requirements that CMS has set forth for an amended review of an MSA, we argued that under the current case law that interprets the Medicare Secondary Payer Statute, Medicare is not entitled to any monies for future medical as no future medical treatment is required. Specifically, we argued that the Court in CIGA v. Burwell, 2017 U.S. Dist. LEXIS 1681 (decided January 5, 2017), concluded that state law creates Medicare’s recovery rights based on concepts of what is compensable versus what is not compensable. Further, the law does not allow Medicare to recover conditional payments for items deemed unrelated to the compensable workers’ compensation claim. Therefore, as Medicare cannot recover for conditional payments made towards unrelated treatment, no future medical proposal needs to be set-aside for unrelated medical treatment. BCM attorneys further relied on Plantation Manufacturing Company v. Industrial Comm’n, where the Court noted that Section 8(a) of the Workers’ Compensation Act provides: “the employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” 294 Ill.App.3d 705,709 (1997).

As BCM Medicare and workers’ compensation attorneys had a joint, inside approach to the case, we were able to succeed in the Amended Review of the WCMSA and secure an approval of a $0.00 WCMSA for the right hand injury. The left shoulder claim settled after receiving a trial award, thereby also closing the future medical for that claim.

How do you know if your case qualifies for an Amended Review of a WCMSA? Pursuant to Section 16.2 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, where the following criteria are met, CMS will permit a one-time request for re-review when:

• CMS has issued a conditional approval/approved amount at least 12 but no more than 72 months prior,
• The case has not yet settled as of the date of the request for re-review, and
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

BCM’s Medicare and workers’ compensation attorneys are able to consistently stay in contact from the inception to the conclusion of a case. This allows the attorneys to continuously work on legal arguments and adjust strategy for successful outcomes in both the Medicare and workers’ compensation aspects.

If you believe you have a case that meets the criteria for an Amended Review, please feel free to contact Marina T. Cobb, Surbhi S. Goyal or Carolyn P. Murray of the BCM Medicare Compliance Department. We will be happy to review and advise based upon the specific facts of your case.