CMS Determines TENS Treatment Ineffective for Chronic Low-back Pain (CLBP), June 15, 2012

On June 8, 2012, CMS published its final decision regarding the use of TENS for CLBP. It has been decided that TENS is not reasonable and necessary treatment for CLBP and is no longer a Medicare-allowable expense. 

Click here for more information.

Smith v. Marine Terminals of Arkansas & American Home Insurance Company

Smith v. Marine Terminals of Arkansas & American Home Insurance Company
No. 3:09 CV 00027-JLH
2011 WL 3489806 (E.D.Ark.August 9, 2011)

This case involved the settlement of an injury action arising under the Longshore Act.   The parties reached a global settlement of the filed liability suit and workers’ compensation claim for $1M, with the workers’ compensation carrier agreeing to waive its lien.  As the claimant was receiving social security disability benefits and was Medicare eligible at the time of the settlement, the parties decided to include a Medicare Set Aside (“MSA”) as part of the settlement.

A MSA allocation in the amount of $14,647.00 was secured from a MSA vendor and submitted to CMS for review and approval.  However, CMS ultimately declined to review the MSA proposal citing “workload threshold” reasons.  After CMS declined to review the MSA, the parties filed a joint Motion to Determine Set Aside Amount in the United States District Court for the Eastern District of Arkansas.  Continue reading “Smith v. Marine Terminals of Arkansas & American Home Insurance Company”

Harrelson v. Bestaff Arcadia

Harrelson v. Bestaff Arcadia
No. 2010 CA 1647, 2011 WL 2739449
(La. App. 1 Cir. June 10, 2011)

The Louisiana Court of Appeals affirmed the decision of the workers’ compensation judge (WCJ) finding that the employer issued timely payment of the settlement agreement as same related to the employer’s payment of the MSA portion of the settlement.

In Harrelson, the parties finalized the settlement and had same approved by the WCJ prior to CMS’ approval of the proposed MSA.  Under the terms of the settlement agreement, the claimant was to be paid a lump sum amount upon approval of the settlement by the WCJ, which the employer paid accordingly. The settlement agreement also contained a contingency through which the employer could opt out of paying the MSA portion of the settlement, and keep medicals open, in the event CMS ultimately came back and required MSA funding in an amount greater than the proposed MSA figure. Continue reading “Harrelson v. Bestaff Arcadia”

ArvinMeritor, Inc. v. Clifton Johnson

ArvinMeritor, Inc. v. Clifton Johnson
CV 2090822, 2011 WL 751925
(Ala. Civ. App., Feb 25, 2011)

This case involved an Alabama workers’ compensation claim filed in 1999.  In February 2003, the trial court found the claimant 100% permanently disabled as a result of an occupational disease and issued a judgment requiring the employer to pay indemnity benefits and the claimant’s future medical expenses related to his occupational disease. (The claimant also filed a separate third party action in relation to this claim).

In November 2008, the parties reached a settlement of the workers’ compensation claim for an undisclosed amount.  The settlement agreement, in part, contained provisions indicating that a proposed MSA of $83,936.17 had been calculated but NOT yet approved by CMS and that the employer was to contribute “up to $65,000” to fund the MSA, “with the balance of the amount necessary to fund the MSA to be paid by [the claimant].”  The court then approved the settlement prior to CMS’ review of the proposed MSA as contemplated by the parties. Continue reading “ArvinMeritor, Inc. v. Clifton Johnson”

Big R. Towing, Inc. v. David Wayne Benoit, el al.

Big R. Towing, Inc. v. David Wayne Benoit, et al.
Civil Action No. 10-538, 2011 WL 43219
(D. W.D. LA, January 5, 2011)

The Big R case involved a Jones Act case which is treated as a liability claim by CMS for “future interests” purposes. In Big R, the principal dispute was whether the claimant needed low back surgery and a hip replacement in relation to the alleged accident. The carrier disputed the recommendations for these surgeries on grounds of medical necessity and causation. There were divergent medical opinions regarding these issues.

The parties eventually reached a settlement for $150,000. At the time of the settlement, the claimant was not a Medicare beneficiary; but was receiving social security disability benefits (SSD). Given that the claimant was on SSD and would become entitled to Medicare at some point after the settlement in connection with the SSD award, the parties decided to take steps to protect Medicare’s interests, which included setting aside monies to protect Medicare’s future interests post-settlement. Continue reading “Big R. Towing, Inc. v. David Wayne Benoit, el al.”