MEDICAL ISSUES IN WORKERS’ COMPENSATION: LEGAL PERSPECTIVES
Understanding the AMA Guides
As Attorney Robert Enright, one of the deans of workers’ compensation in this state loves to say, workers’ compensation is 99% medicine. It is true that workers’ compensation represents the intersection of legal and medical principles. One useful roadmap for safely navigating this intersection is Cocchiarella, Linda and Gunnar Anderson, Guides to the Evaluation of Permanent Impairment, Chicago, American Medical Association, 2001. (Hereafter AMA Guides.) There are currently six editions, and in general physicians, to the extent they use them at all, use the Fifth and Sixth editions. It should be noted that there is no requirement either in the statute or in relevant case law requiring medical practitioners to make impairment ratings based on the AMA Guides as opposed to other available guides or their own experience and training in a particular area of expertise. See Safford v. Owens Brockway, 265 Conn. 526, 533, 816 A.2d 556 (2003).
It should be noted that the AMA Guides makes a distinction between “legal” causality and “medical” causality. “Legal terminology defines the association between an event and an outcome as ‘probable’ if it is more likely than not – – if the probability of a cause and effect relationship is greater than 50%.” However, this is not true with the standards in medical literature because, after all, doctors are first and foremost scientists. According to the AMA Guides the standard for a likelihood of an association between a potential cause and effect has to be “greater than 95% for the relationship to be considered ‘probable’, everything else is only possible”, Id. at 25.
As a consequence, it is extremely important that when you are communicating with a doctor asking for an opinion as to causality that you spell out the legal standard that we rely upon every day, which is to say that there has to be at least a 50.1% likelihood (more likely than not) that the work related activity is a substantial contributing factor to the need for the medical treatment sought.
There are other terms that we need to be careful about using. For example, doctors often refer to an aggravation or an exacerbation in reports in which the claimant had a pre-existing injury. This may seem to lawyers a distinction without a difference. However according to the AMA Guides an aggravation is “a circumstance or event that permanently worsens a pre-existing or underlying condition.” Id. at. 25. Ergo, an aggravation would necessarily be a substantial contributing factor because it has made something significantly and permanently worse. The terms “exacerbation, recurrence, or flare-up” “generally imply worsening of a condition temporarily which subsequently returns to baseline.” Id. at 25. Therefore, the two terms are not synonymous and have significantly different legal import, with “aggravation” being the term of art that is helpful to claimants.
Another distinction of which we need to be aware is the difference between “impairment” and “disability”. Permanent partial impairment measures the degree of loss of function in a specific body part. This is to be distinguished from disability which describes the way in which an impairment affects one’s lifestyle because of the loss of function. The term “permanent partial disability” or PPD is, therefore, a misnomer, and should really be called permanent partial impairment. The two terms can be distinguished best by way of an example. A concert pianist may lose the tip of her master right pinkie or “fourth finger” as is described by the statute and suffer a permanent partial impairment of the removal of one phalanx or a 50% impairment of her finger which amounts to 8.5 weeks of a specific rating. However, the loss of one phalanx of her pinkie may result in complete disability in terms of her ability to play as a concert pianist in the future. Again, we as lawyers, Commissioners, and doctors use the terms interchangeably, but there is a significant difference between the two.
Regional Versus Whole Person Impairments.
Both the Fifth and Sixth editions of the AMA Guides express their ratings in whole person ratings, or wpi. The Connecticut Workers’ Compensation forum does not recognize whole person ratings and such ratings must be converted to the regional body part. Very often, the treating physician or the respondent’s medical examiner will reference a specific table in a specific edition of the AMA Guides in rendering his opinion as to the claimant’s impairment rating. As a claimant’s practitioner, it is imperative that you determine whether the physician has applied the conversion table to his rating. For example, in the event that a treating physician specifically references the Sixth Edition of the AMA Guides Table 17-4 and states that the claimant has a 12% of the whole person as it relates to his lower back, you must then ask the treating physician to complete the additional conversion that is required. In the Fifth Edition of the AMA Guides this conversion table appears on page 427 and is attached in the appendix as Exhibit 1. This is best accomplished by a letter to the doctor which I have also included in the appendix as Exhibit 2. I have also included a doctor’s response to such a request as Exhibit 3. In the example used above, the conversion table requires that the doctor divides the 12% impairment by 0.75 for a conversion to a lumbar rating which will derive a 16% permanent partial impairment instead of a 12%. The conversion for cervical spine is much more dramatic because the conversion factor is 0.35. Therefore a 10% of the cervical spine is equal to a 28.57% when it is converted.
This distinction can be particularly effective in cross-examining orthopedic surgeons who have proffered a respondent’s medical opinion and specifically referenced sections of the AMA Guides but have not done the conversion. Sometimes they are required to be dragged across the finish line to get them to indicate they did not do the conversion; however, if they are going to reference and use the AMA Guides, whatever edition, then they must use them completely and not piecemeal.
There was apparently a committee that the Chairman’s office has commissioned to address this issue because a number of doctors think that this conversion factor is unfair. However, at the time of publication of these materials there has been no memorandum issued by the Chairman’s office to address this issue. The Sixth Edition did not originally publish this table and was riddled with other errors that required a republication of the Sixth Edition in which the same conversion table is now included.
From a respondent’s point of view, there is a similar conversion of the unscheduled body part – the shoulder – to a scheduled body part, the upper extremity. The Safford decision describes a scenario in which the treating physician originally awarded a 20% of each shoulder. 265 Conn. 526, 817 A 2d. 556. Respondent’s counsel wrote to the treating physician to ask for a conversion from a shoulder rating to an upper extremity rating. The physician reduced the rating to 12% of each shoulder. The trial Commissioner and the CRB relied on the original 20% rating but the Supreme Court reversed, finding that there was no medical documentation supporting a 20% rating.
Work-Related Aggravation of Pre-Existing Conditions (Substantial Contributing Factor)
There is a well-known axiom that “we take our claimants as we find them”. We have to
accept our claimants with all their blemishes, including their pre-existing condition for the same body part as the one for which they are trying to collect benefits in the current claim.
There are myriad circumstances where this can occur. Typically the claimant has sustained an accepted injury to a specific body part which may have been accepted and paid for through a different carrier or a different employer. Then the claimant reinjures the same body part and the question becomes whether this is a new injury or not. As stated above earlier, this is where the distinction between an “aggravation” and an “exacerbation” or recurrence is implicated. Integral to this discussion is whether the new injury is a substantial contributing factor to the overall need for the treatment that is now being requested, or whether it is simply a recurrence of the old injury that has suddenly flared up.
In making this determination, the treating physician should not just be asked whether the new injury is a substantial factor. Instead, the practitioner should provide the physician with a definition of what substantial contributing factor means in our lexicon. Specifically, you should send a letter to the treating physician asking him to consider whether the new injury is an important factor which can be one of a number of other factors and need not be the most important factor to be considered a substantial contributing factor. Treating physicians must understand that causation may be multifactorial and that there may be several independent concurrent causes for a specific condition. See Exhibit 4 attached. It is equally important if a Commissioner is inclined to order a Commissioner’s exam, to ask the Commissioner to include language in her letter defining this term for the Commissioner’s examiner. As stated in the Guidelines for Cooperation, sometimes an opinion will turn on something as simple as using the article “a” substantial contributing factor rather than “the” substantial contributing factor. The Supreme Court has wobbled back and forth in its definition of substantial contributing factor. In the case of Birnie v. Electric Boat Corp., 299 Conn. 392 (2008) they articulated what appeared to be a watered-down standard indicating that the employment or the risks incidental thereto, contribute to the development of the injury in more than a “de minimus” way. In Sapko v. State of CT, 305 Conn. 360, 44 A. 3rd 827 (2012), the court backtracked by stating that in Birnie “the court’s aim was not to clarify – much less alter – the substantial factor test but to explicate it… The substantial factor test remains as it was prior to Birnie” whatever that may mean.
There is case law to suggest that even if a particular surgery that is now required would have been required in any event because of the pre-existing injury, if this surgery is appreciably hastened by the new injury then the new injury is a compensable event. Again, the opinion of the doctor must be expressed in terms of a reasonable medical probability, more likely than not. This same analysis is true when asking a doctor for the impairment rating for a pre-existing injury. Obviously in cases where there has already been a paid or payable event, the treating physician should deduct the prior rating when awarding a new rating for the new injury. It is my practice to provide the doctor with the prior rating so that the treating physician knows what the base line is prior to committing herself to a rating.
In cases where the prior injury has not been rated with an impairment as a result of a paid or payable event, then the doctor must include any percentage of impairment for the prior injury, and provide an assessment for the entire injury, including the impairment which would be imputed to the original injury. Connecticut General Statutes § 31-349, attached as Exhibit 5, indicates that if an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the second injury alone, he gets the entire disability less anything paid or payable. An example will help illustrate this concept. If a claimant tore his meniscus in high school playing baseball, (not an event that he could have been paid for through either workers’ compensation or negligence), and if the claimant would have been entitled to a 10% for that prior impairment, and he then sustains a second work-related injury in which he re-tears the meniscus and is awarded an additional 10%, he is entitled to the entire 20%. In the alternative, if the claimant sustains a prior 10% in an automobile accident for which he received a settlement, and if we further assume he is awarded an additional 10% in a work-related injury, he only gets credit for the new 10% because the 10% from the M.V.A. was paid already.
In a case where there has been a prior accepted injury from which the claimant
has recovered, then suffers a flare-up which causes the claimant to be totally disabled at a subsequent date, then the claimant may choose between the basic compensation rate as of the date of the recurrence, or as of the original injury, whichever is higher. The BCR for purposes of establishing his specific award is based on his average weekly wage as of the date of the original injury; the claimant does not get the benefit of choosing the higher amount for the purposes of the rate to calculate his specific award.
In an instance in which the claimant sustains an injury but is not rendered totally incapacitated until a date months or years in the future, the BCR for purposes of temporary total benefits are based on the claimant’s earnings as of the date of incapacity, not the date of injury, even if the date of injury would yield a higher BCR. See Partlow v. Petroleum Heat and Power Company, 5432 CRB-7-09-2 (February 9, 2010); Mulligan v. F.S. Electric, 231 Conn. 529 (1994), and Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995), which also establish the date of incapacity standard for the determination of a wage rate where there is a gap between the date of injury and the date of incapacity. See 31-307b, attached as Exhibit 6.
Communicating with Physicians
As the son of an orthopedic surgeon, I can attest to the sometimes-prickly relationship between lawyers and doctors. Although the workers’ compensation forum is generally more user-friendly to doctors because we rely on their deposition testimony at trial rather than having them testify as live witnesses, there is still some animus that doctors have for lawyers. There are a number of doctors who refuse to take workers’ compensation cases altogether because they simply do not want to deal with the litigation in which they may necessarily become embroiled. Other doctors begrudgingly participate in the process, but make it clear they are not happy about it. And still others seem to relish their position as the darlings of the workers’ compensation Commissioners and to take an active role as respondent’s medical examiners and Commissioner’s examiners.
The Guidelines for Cooperation allow a treating physician to charge $200.00 for a response to a request for a special report. I have taken the cue from adjusters’ letters to doctors in which they outline the issues in the case and then attach two possible alternatives, asking her to check off the correct box and then sign and date the report. Often the doctor will not feel compelled to charge a fee for this check-in-the-box type of report. See Exhibit 7 attached hereto. Sometimes the doctor will request a fee that is not countenanced by the Guidelines. Generally, I will attach a copy of the relevant section of the Guidelines to my letter indicating that I am not allowed to pay more than $200.00, which provides cover for claimant’s attorney not wanting to pay more than the $200.00 fee. See Exhibit 8.
When the case has not been accepted as a compensable injury and you are asking the doctor for a special report to establish compensability, the doctor is not compelled to accept the $200.00 because without his causality report you cannot establish compensability. In those instances the sky is the limit. Recently, I encountered a doctor asking for $750.00 in an adjacent level disc disease case where there had been an accepted claim and a fusion at one level and then 10 years later the next level became herniated. I reluctantly paid $750.00 and then got a letter stating that the doctor could not state within a reasonable medical probability that the new disc was a result of adjacent level disc disease. I then sent him an article from the Bone & Joint Journal which indicated that there was a 26% chance of getting adjacent level disc disease within 10 years, and asked the doctor whether this article, which is from a respected source, recognized as an authoritative journal by orthopedists universally, would allow him to opine that the original fusion substantially contributed to the need for the new fusion. The doctor asked me to send another $750.00. To date, I have refused to do so, and I asked the claimant to discuss this with his physician at the next appointment, before throwing good money after bad.
D. WORKERS’ REHABILITATION SERVICES, K.A VOCATIONAL REHABILITATION
C.G.S. § 31–283a provides that the Department of Rehabilitation Services shall provide rehabilitation programs for employees suffering compensable injuries under the Workers’ Compensation Act in situations where those injuries disable the employee from performing her customary or most recent work. While the Vocational Rehabilitation program used to be administered within the auspices of the Workers’ Compensation Commission, as of July 2011, the D.O.R. now runs the program. While in its heyday the program included 15 vocational rehabilitation counseling coordinators, there are now a total of six staff, including four counseling coordinators, plus the director, Sharon Friedman, and a secretary. In the past, this program has had temporary suspensions due to lack of funding. As of the date of the submission of these materials for publication, the State of Connecticut still has not passed a budget, so the funding for this program may be impacted by whatever happens in Hartford.
Pursuant to Connecticut Regulations § 31-283a-2, there are two criteria which are required for the candidate to be considered for this program:
- The employee has to complete and file an application, a copy of which is attached to these materials;
- That the claimant has a permanent impairment which substantially disables her for a significant period of time from performing the worker’s most recent customary type of work and this impairment is a direct result of the compensable injury.
The regulations provide further clarification by stating that if the employee possesses adequate vocational skills to obtain other employment then she will be disqualified. Further, the employees medically documented residual capacities and vocational status has to be stable enough that a meaningful rehabilitation effort is practicable. In addition, the employee’s medically documented limitations must allow a reasonable expectation of successful completion of one of the programs offered by the Vocational Rehabilitation Department such that the employee can either be reinstituted at his original employer or with a new employer. Connecticut Regulation § 31–283a–3 et seq. The Regulations also provide for a subsistence allowance, but during the course of at least the last 25 years, the program has not had the funding to provide for this payment.
There is a common misconception that if you already have an associate’s degree or a bachelor’s degree, that you will not qualify for workers’ rehabilitation. However, someone who already has a bachelor’s degree in nursing for example, may still be eligible for vocational retraining in the event that she meets the other requirements, i.e. she cannot return to nursing. Approximately ____ applications are filed each year of which ___ percentage are placed in the programs. The concept is that State of Connecticut will waive tuition at the institutions that are able to provide this retraining. These would include the following: most of the state universities, Branford Hall, Porter & Chester, as well as a variety of other occupational schools.
There is also a provision in the Regulations that allows for an appeal of any person or employee who has been aggrieved by the actions of the Workers’ Compensation Commission in withholding or providing benefits under this program. This requires a written notice of appeal to the Chairman or his designee which would include the nature of the grievance, the remedy sought and any acceptable alternatives. Within 15 days of the receipt of this notice of appeal an informal conference shall be scheduled with the grievant. Upon consultation with the chairman’s office there were no such hearings filed last year. As a practical matter, the appeal goes to Sharon Friedman first, and all such matters have been successfully resolved. The key to making the best use of the Vocational Rehabilitation Services is to get your client to file an application as soon as practical. In my practice, this generally coincides with the award of a specific rating when the doctor determines whether the claimant can return to her original job. Regardless of whether the case settles or stays open, it is crucial that we provide our claimants with the application to one of the greatest benefits available to him, as early as possible.
Cross-examining the RME
Unfortunately, in workers’ compensation, in order for the respondent’s medical examination to commit to evidence, the respondent must, at its expense, take the RME’s deposition. There is a tendency to believe that you need to score a knockout punch in order to get the RME to flip his testimony and to concede the issue that you are trying to prevail upon at trial. It probably makes more sense to try and get the RME to agree with as much as of your case as he will agree to and then try to pick apart any vulnerabilities in the part of his opinion that are not helpful to your case. You should review the RME’s curriculum vitae. The witness may be offered as an expert in a field about which he is not an expert. For example, in a disc replacement case, I had a report from a treating orthopedist that a disc replacement surgery was reasonable and medically necessary. The expert that was proffered by the respondent was an out-of- state psychiatrist. On cross-examination, the doctor had to agree that he had never performed any back surgery and in fact was not allowed to perform back surgery as a psychiatrist. Another example is in a chemical exposure case where the treating physician is a urologic oncologist and the RME is a toxicologist; a strong inference can be drawn that the treating physicians would better understand the cancer genetics of the particular exposure than a toxicologist would.
Another area that is typically discussed in connection with cross-examination of experts is the fee charged, as well as the percentage of the physician’s practice devoted to RME work. My own feeling is that the fee is usually dictated by the Guidelines of Cooperation, although during the course of the deposition it is proper to ask the RME what he was paid for his report and what he is being paid to provide testimony. If it is significantly more than that which is allowed under the Guidelines, perhaps that is something which the Commissioner would be interested in. The same can be said of how much work the physician does in connection with defense litigation. However, I think this is more important in personal injury cases where a jury is impressed with these issues rather than a Commissioner, who has his own book on each of the doctors and has already, in all probability, formulated an opinion about the particular physician in question.
Review the treatises and periodicals relied upon by experts in their field and try to find
information that supports your thesis. You can read from the textbook or publication and then ask the deponent whether he agrees to that language.
Have your client keep track of how much time the RME spends in examining your client. It is rare that the respondent’s examiner will spend more than 10 minutes with the claimant. You can then ask the RME whether the doctor who has been treating the claimant for the past year and has seen her eight times during that period is in a better position to make a determination on the particular issue in this case then the RME who has the seen the claimant for the sum total of 10 minutes. Again, the Commissioners are less impressed by the paucity of time spent with the claimant than a jury would be, but it is still relevant evidence.
Ask the RME if and how his opinion would differ if he assumed other facts upon which he did not rely in formulating his opinion. For example, in a chemical exposure case recently, the RME provided an opinion that in the event that the claimant had not been exposed to a certain chemical, he could not have developed cancer, and because the information for which he was provided indicated there was no such exposure, the cancer had to be _______ rather than related to any exposure at work. On cross examination, I asked him if he assumed that there was significant exposure to this particular chemical would his opinion differ. Although I had to drag him across the goal line he eventually acknowledged with various caveats that the claimant very well could have suffered from this particular cancer in the event he had the exposure that we were claiming that he did.
Have the witness identify technical terms that may be identified in the medical literature that is relied upon in the scientific community. Again, in a recent chemical exposure case, the treating physician had provided a report taking about the significance of damage to a particular gene as an event in the development in this type of cancer. Upon cross examination, the RME vaguely knew about this gene but could not explain the significance of damage to it in connection with the type of cancer the claimant developed.
Also, as discussed above, if the issue is the impairment rating of a lumbar spine, make sure that if the RME refers to the AMA Guides that he uses them.
Try to remember that with issues like whether something is a substantial contributing factor, it is ultimately the factual determination to be made by the Commissioner. Too often, we tend to get hung up on having the right words out of the deponent’s mouth. See Slide ___. The witnesses can often get frustrated but ultimately, if the physician testifies that the work-related injury constitutes 5th% of the entire causality, it is up to the Commissioner to determine if that is a substantial contributing factor.
Calculating the Value of a Claim
In general, the drafting of a settlement demand is half math and half creative writing. The basic format for construction of the demand is to include the items that are in the attached diagram.
The first four categories are anchored in reality: temporary total, temporary partial, permanent partial impairment and 308 wage differentials. As our old secretary of defense would refer to these four items, they are the “known and known’s”. The next four, which would include future temporary total, future permanent impairment, future wage differential, and future medicals, are more speculative in nature and are therefore the “known and unknowns”. In Connecticut, in general the employer/insurer is not going to consider settlement of a case until the claimant is no longer working for the employer. However, there are certain exceptions such as Walmart, who apparently has made a decision to settle their cases even when the claimant continues to work there. We can assume there are other instances in which the employee no longer works there, but the case cannot be settled, such as the wide majority of cases with the State of Connecticut or cases in which the insurer became insolvent and are now being administered by the CT Guaranty Fund. Again, there are exceptions to both of those entities and under some circumstances settlements are possible.
Assuming that the case is in a position to settle, the first thing to do is to make sure that the claimant has been back to the treating physicians and has a fresh report. If the claimant has not been treated by a doctor in years, then you will have to seek permission from the adjuster to get him or her back to the treating physician for a fresh report. This may also involve a new MRI or other diagnostic testing. This will provide both the claimant’s counsel and the respondent’s counsel with a fresh look at the current condition of the claimant’s injury, a prognosis for the future which would presumably include an assessment for future medical treatment, and a current impairment rating. It is my experience that the adjusters are often reluctant to provide authorization for this because of the potential for the diagnostic testing that may accompany this visit, but in order to properly value your case, there is no shortcut. You need to ask the treating physician to consider what the current impairment is, what the prognosis is for the future, and what the future medical treatment may entail. See my letter attached as Exhibit ___.
The next thing is that you must make sure you have the correct BCR. If you had a high earner, you have to be aware that there is a different rate for permanency than there is for TT or TP. If the claimant was originally injured on a date certain but was not disabled until a subsequent date, you are obliged to use the date of disability rather than the date of injury for the purpose of establishing his temporary total rate. Presumably, all of this will have already been established through a jurisdictional or a specific VA, but it is surprising how many times it is actually not done during the course of a file. So, for TT make sure you are using the correct BCR. In an occupational illness if the claimant is no longer working for the employer, they have to look to the Green vs General Dynamics Corp., 245 Conn. 66, 712A. 2d 938 (1998) which provides that if the claimant is still working then you use the average weekly wage at the time of the diagnosis since there is typically an impairment at the time of diagnosis. However, when the claimant is not employed at the time of diagnosis, you have to look at 31-310c which requires you to either A: base it on the prevailing wage for the relevant type of work at the time of the first manifestation of symptoms or date of incapacity, or alternatively the AWW may be determined based on the claimant’s last period of employment and adjusted by COLAS to the date of the first manifestation of injury. Carter and Civitello section 4:9 page 148. If you are using the weekly wage from the last period of employment adjusted by COLAs, there is someone at the Chairman’s office that can make that determination for you if you provide the last date that the claimant worked there and the first date of manifestation as well as the wage earned. You may be able to use the relapse rate under 31-308b if the claimant is making more money either at his current job or at a new job than he was at the time of the injury. Under the specific award, make sure that the treating physicians has done the conversion from the whole person rating to the regional body part, and I would note that if he has a shoulder impairment that the doctor expresses that in terms of an upper extremity rating. See the Safford decision.
In terms of 308A wage differential, you need to have medical proof in terms of the treating physician’s or any other of the doctors that have examined him that state that the claimant has permanent restrictions that are inconsistent with his return to his former job. You then have to look at the transferable skills that the claimant has that would recommend him to a job that would pay as much or more than his old job. This would include an investigation into what specific licenses or certifications and educational accomplishment the claimant has that would recommend him to a higher paying job. (the test of incapacity is not the employee’s ability or disability because of his injury to do his old job but whether he could do another job and earn as much money.) Clark v. Henry & Wright Mfg. Co., 136 Conn. 514, 517, 72A. 2d 489 (1950) This benefit is, by statute, capped at the number of weeks that the claimant has been awarded for his specific award. This is a discretionary benefit that the Commissioner may or may not award. In most instances, I would input in my demand so minimal earning capacity rather acknowledging that the claimant can at least make minimum wage. In some instances, this will not be realistic but in most instances, it is difficult to argue the claimant does not have at least minimal wage capacity.
The evaluation of the future exposures is more of an art and usually that is where the biggest differences occur in evaluation between claimant’s counsel and respondent’s counsel. Sometime the treating physician is thoughtful enough to include a line in his or her report that it is reasonable to expect that the claimant will be side lined from his regular occupational activities because of temporary flare-ups. Typically, I look at the claimant’s remaining years prior to retirement at 65. If there are 20 years left, I then assume that there will be a certain number of weeks per year depending upon the injury. In the alternative, if there substantial likelihood that the claimant will need an additional surgery, I will often multiply the number of weeks that the claimant could be expected to be out from the surgery, i.e. 26 weeks following a total knee replacement, by the percentage of likelihood of needing this procedure, i.e. 75%, to come up with a future temporary total figure of 19.5 weeks.
For future impairment, the practitioner has to consider whether the claimant is likely to require additional surgical intervention or future surgical intervention. For example, if the claimant has sustained a torn meniscus, the removal of the cartilage in his knee will necessarily make him more susceptible to having to have a total knee replacement in the future. If this procedure is required, the 5% or 10% that has he received now will mushroom to a 25% at least in the future. Similarly, if the claimant has had a spinal fusion, there is a considerable likelihood (26% chance within the next 10 years) that the claimant will develop adjacent level disc disease that will require further intervention. Therefore, both the future impairment and future medical treatment will be implicated by these scenarios. In addition, in dealing with future medical treatment you must consider Medicare’s interests. This can be done by creating a Medicare Set Aside or by allocating a certain portion of the settlement proceeds to future medical treatment. While this subject could easily consume the entirety to these 45 segments, suffice it to say that in every workers’ compensation case that you settle you have to take Medicare’s interest into consideration. Medicare has a review threshold which requires that in cases where the person is a Medicare recipient and the case is settling for $25,000.00 or more, they will review the case; in the alternative if the case is settling for $250,000.00 or more and the claimant reasonably anticipates applying for Medicare in the next 30 months, Medicare will also review that proposed MSA. That does not mean that if your proposed settlement falls outside of those thresholds, you not need to consider Medicare’s interest or potentially create an MSA. Since it can cost a couple of thousand bucks to have an MSA completed, we usually try to prevail upon the insurance company to provide those through one of their vendors at their costs. Many insurance companies do not want to go to that cost and they want to have some dollar amount designated in the agreement itself. If you feel that your claimant may be applying to get on social security disability sooner or later, or if he or she is getting close to the age of retirement, if may be prudent to at least have an allocation for future medicals in the stipulation agreement. The reaction to a lot of adjusters is to put aside 10% of the gross settlement. While CMS would make everyone’s life easier by agreeing to such a uniform percentage, there is no such provision that exists. My own practice is to look at whatever proportion of the medical that had been attributed in my demand and use that proportion in any ultimate settlement agreement. If my demand includes $20,000.00 for future medical and if we end up settling for $____________ then if I feel that I need to include an MSA or an allocation, I will try to link it to my demand and ask for an MSA of $10,000.00. At least there is what I have written to the respondent in terms of my evaluation of future medical treatment and what ends up being in the agreement.
Future wage differential is a category of exposure that is very difficult to get the respondent to agree to because it is to some degree piling speculation. Obviously, we do not know what the future impairment is going to be and as stated before, the wage differential is tied to the impairment. In addition, the claimant has to be available for work in Connecticut in order to get this benefit. If your claimant is residing out of state, it is probably not worth getting any consideration for this exposure since the respondent can correctly assert that they don’t have to pay it to a non-resident. If the claimant lives in one of the border states of New York, Massachusetts or Rhode Island, then you can still make the argument.
If the claimant has become eligible for Medicare, the practitioner must take care that the claimant has not submitted any of his medical bills to Medicare for payment. You need to send a request for conditional payments to CMS and you will receive a letter back indicating any such payments that have been made. Your client can also get on the CMS portal and ascertain the same thing.
The Carter & Civitello treatises provides a checklist of items that need to be reviewed and considered prior to settling a case in chapter 28 of their book. One of the items that you to be _____ any items that have been properly placed on the file including Erisa health liens; Medicare Conditional Payments; Veteran’s Administration payments; Public Assistance whether it is medical or indemnity; child support; alimony/divorce; long and short-term disability and unemployment benefits.
One final part regarding MSA is there are a number of medications that are not covered by Medicare. For example, Lyrica is not covered and is very expensive. Another example is Pennsaid Gel which is $500.00 per one-month supply. Items such as these must be priced in a separate non-medical MSA because the claimant is going to be forced to absorb these payments without the benefits of having an MSA to do so. Specifically, CMS will not allow you to make payment from the MSA for items it would not allow. A valuable source in making the determination of what items are included is Mackler Associates, LLC – Medicare Set Aside Consultant, 267 Sackett Road, Westfield, MA 01085, phone number 413-391-0856. Local attorneys in this area would be Greg Liskowski and Angelo Saveriano.