Recently in a case in Arkansas dealing with the Longshore and Harbor Workers' Compensation Act, a Federal Court ruled that Medicare’s interests were considered and protected based on a Medicare Set-Aside (MSA) allocation despite the fact that the settlement was over the $25,000.00 threshold and the Center for Medicare and Medicaid Services (CMS) refused to review it.

Evidence before the court showed that the Medicare vendor who prepared the MSA had repeated conversations and correspondence with CMS representatives who decided not to review the MSA submission. However, the value of the settlement ($1,000,000.00) clearly exceeded the $25,000.00 threshold. The Court stated:

“It is apparent to the Court from the aforereferenced CMS correspondence and affidavit from attorney (for Medicare vendor) that regardless of the details and potential deficiencies in the original submission, that CMS has decided it will not, for whatever reason, review or reconsider the proposed MSA, which response or lack thereof potentially jeopardizes what otherwise appears to be a reasonable settlement in the best interests of Billy Smith to accept and complete.”

After further review of the evidence, the Court found that the parties had done all that was reasonable and prudent and within their ability and authority to do to protect Medicare's potential interest in the settlement. As such, despite the lack of CMS review of a settlement above the $25,000.00 threshold, the Court held that Medicare’s interests were protected.

Read the full opinion here: Smith v. JLH Marine Terminals Of Arkansas

Ex parte El Reposo Nursing Home Group, Inc.

On September 16, 2011, the Alabama Court of Civil Appeals released this opinion wherein it denied the employer’s petition for a writ of mandamus. At the trial court level, the matter was bifurcated and, following a trial, the judge issued an order finding the employee’s back injury and resulting pain compensable. As a result, the employer began paying for the employee’s medical care. During the course of the employee’s treatment, two authorized treating physicians agreed that pain management was necessary but that the pain was not related to the job injury. One of the doctors testified at deposition that, because the employee had the pain prior to the work accident, that the pain management should be paid by the employee’s private health insurance rather than by the employer. Despite the opinions of the doctors, the trial judge ordered the employer to pay for the treatment. The employer then filed a petition for a writ of mandamus asking the Court of Appeals to order the trial judge to reverse his order. The Court of Appeals denied the petition because the opinions of the doctors regarding causation were rendered irrelevant by the judge’s previous order which related the pain to the job injury.