Precision in Litigation Cuts Large MSA by Almost Half

May 2019

The claimant, a certified nursing assistant, injured her right hand when a patient grabbed it, squeezing and twisting.

Her treating physician found no significant bone or muscle injury, but nevertheless diagnosed complex regional pain syndrome of the right upper extremity. Within eleven months of the accident, a spinal cord stimulator was implanted to control claimant’s right hand and arm pain.

Over a year later, the claimant first complained of left hand and thorax pain. The claimant’s physician diagnosed complex regional pain syndrome “spreading to the left upper extremity.” The employer’s examining expert disagreed, noting not only the time delay in reporting left side symptoms, but also that the claimant’s left-sided symptoms were not consistent with chronic regional pain syndrome. There was also an issue as to the level of work the claimant could perform on a permanent basis.

Due to the disputes, a compromise settlement was in order and, as the claimant was a Medicare beneficiary, the employer engaged a vendor to submit a proposal to Medicare to approve an MSA. In reviewing the evidence per its own guidelines, Medicare looked only to the treating physicians, and approved an MSA amount ($300,254) that included funds to cover future maintenance of a separate spinal column stimulator on the left side, as wells as a stimulator on the right.

Based on its experience handling MSA submissions, BCM determined that the only way to reap the benefit of the independent examiner’s opinions would be to try the case. However, to preserve the settlement bargain reached on the indemnity issues, the Firm negotiated with the claimant’s attorney to stipulate to the temporary total and permanent partial disability issues, and then to try the case solely on causation and medical expenses.

The trial proceeded with these stipulations, and the arbitrator adopted the opinions of Respondent’s physician over those of the treaters with regard to the left hand. The arbitrator ruled the left hand symptoms were not related to the work accident, and the employer was not liable for any medical treatment related to the left hand, including the left side spinal stimulator.

With this decision in hand, BCM submitted a request to appeal the MSA, and Medicare approved a lower amount that excluded treatment of the left side, resulting in savings of about $135,000 for the employer.

Please note that Medicare does have time limits on when its approval of a particular MSA can be appealed, or in Medicare’s term: “re-reviewed.” For more information on the re-review process or to discuss using litigation as a strategic tool for lowering MSA values, please contact Paul or the attorneys in our Medicare Compliance Department.