Workers’ Compensation Settlement and Medicare Set-Asides

Developing a Medicare Set-Aside makes it easy for insurers to consider Medicare’s interests during workers’ compensation negotiations. Federal law requires that employers, group health plans, and insurance companies, consider the Centers for Medicare and Medicaid Services’ (CMS) interests during the settlement of workers’ compensation claims. There are several ways the parties may consider CMS’s interests during settlement, but the most common way is to establish a Medicare Set-Aside (MSA). An MSA is, in effect, a fund developed to provide for future medical expenses. Insurers should consider using an MSA whenever a claimant’s injury is work-related; there are future medical expenses; and Medicare could possibly be responsible for paying for treatment. Medicare considers itself a possible payer whenever a claimant is a Medicare beneficiary and the workers’ compensation settlement amount is greater than $25,000. It also considers itself a possible payer when the settlement amount exceeds $250,000 and the claimant can reasonably expect to become a Medicare beneficiary within thirty months of settlement. Insurers wishing to develop an MSA should use legal and medical experts to evaluate the claimant’s medical reports and cost analysis tables to determine the future cost of treating the work-related injury. Legal experts can then take this cost and cross-reference it with Medicare’s statutory guidelines to determine which aspects of treatment Medicare will cover. Once an amount is determined the insurer and the claimant should agree on this amount and earmark it in the settlement agreement to fund the MSA. After the resolution of the claim the insurer must disburse the agreed upon amount directly to the claimant or a third party financial administrator. After disbursement...

Workers’ Compensation Coverage for Corporate Officers

High atop the corporate ladder sits the corporate executives who survey their company’s landscape and strive to make decisions that will positively affect the business’ future. But, what happens when one of these corporate executives falls from a ladder or slips on a banana in the break room and injures herself? Georgia’s Workers’ Compensation law contemplates this occurrence and provides for the welfare of corporate officers. Under Georgia law corporate executives are presumed to be employees subject to the Workers’ Compensation Act unless they choose to be exempt from coverage by providing written certification on Board Form WC-10 to the insurer and the State Board. O.C.G.A. § 34-9-2.1(a). A valid exemption must identify the officer by name and state her title. O.C.G.A § 34-9-2.1(1) and (2). The law mandates that no more than five corporate officers in a company may elect to be exempt from Workers’ Compensation coverage. Corporate officer coverage applies to top officials in corporations and limited liability entities. This coverage, however, does not apply to partners and sole...

Subrogation – Fact or Fiction?

O.C.G.A. 34-9-11.1(b) provides that when an employee has a cause of action against a third-party tortfeasor in a work-related accident and the employer has paid workers’ compensation benefits as a result of the accident, the employer/insurer has a subrogation lien against the third-party. The employer may therefore seek to intervene in any action against the tortfeasor to recover an amount up to that which has been paid in workers compensation benefits. The recovery can only occur if the settlement or jury award leaves the employee “fully and completely compensated” for all losses, both economic and noneconomic as a result of the injury. As simple as the above may sound, it is a nearly impossible burden for the employer to carry. There is great discretion for judges to determine when a claimant has been fully and completely compensated and the usual result is that the employee has not been made whole and so the employer/insurer recover nothing. Further, any decision by a judge with regard to whether the claimant has been fully and completely compensated can only be overturned on appeal if the decision is “clearly erroneous.” See, Georgia Electric Membership Corp. v. Garnto, 266 Ga.App. 452 (2004). A very high standard indeed. The practical solution for the employer/insurer is often to intervene in the lawsuit, but then quickly come to a settlement agreement with the injured worker on the workers’ compensation claim that provides for the payment of some of the total benefits paid out based upon the amount of the settlement or judgment in the tort claim. As an example, such an agreement may provide for the payment...

What is a Workers’ Compensation Deposition?

A workers’ compensation deposition is the taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. This is a very common proceeding when an injured worker files for a hearing before the State Board of Workers’ Compensation. A deposition is part of “discovery”, arranged by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or claimant), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (the deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side’s attorney. The testimony is taken down by the court reporter, who will prepare a transcript, if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available. In a workers’ compensation setting, the ALJ has unfettered discretion to admit a deposition into evidence at a hearing regardless of availability of the deponent or whether the deposition was taken for the purposes of discovery or for use as evidence. See, O.C.G.A. § 34-9-102 (d)(3). If you’ve been injured at work  and need assistance with your claim, contact one of our experienced workers’ comp...