Q: I have a compromise and release agreement that is under $25,000.00. Do I have to consider Medicare’s interests even if they are on Medicare since the settlement is under Medicare’s threshold review amount?

A: Injured individuals who are already Medicare beneficiaries must always consider Medicare’s interests prior to settling their WC claim regardless of whether or not the total settlement amount exceeds $250,000. That is, ALL workers’ compensation payments regardless of amount must be considered for current Medicare beneficiaries.

However, CMS no longer reviews new WCMSA proposals for Medicare beneficiaries where the total settlement amount is $25,000 or less. So if the total settlement amount is $25,000 or less, the parties to the settlement are still required to consider Medicare’s interests. The recommended method to protect Medicare’s interests is to enter into a Medicare Set Aside arrangement to protect Medicare’s interests, even though CMS will not review the proposal.

My general recommendation is employers obtain an expert opinion on the necessity or lack thereof for a Medicare Set-Aside Trust whenever an injured worker is receiving Medicare. If there is a need for a Medicare Set-Aside Trust in the expert’s opinion, one should be included in the C&R with a copy of the expert opinion upon which it is based.

Q: Applicant has requested to return to work but his AME found he is temporarily totally disabled. Does an employer have to try to return him to work?

A: Yes. While an injured worker is temporarily totally disabled pursuant to any doctor’s reporting, this medical opinion alone does not preclude a return to work. In fact temporary disability payments cease when any of three events occur, not necessarily all together: (1) the employee returns to work; (2) the employee is deemed medically able to return to work; or (3) the employee’s medical condition becomes permanent and stationary.

An employee who is temporarily totally disabled for workers’ compensation purposes often returns to modified, alternate and even regular work. This is regardless of whether the employees’ condition has reached maximum medical improvement or permanent and stationary status based on employer need or the legislative mandate that an employer engage in a mutual interactive process pursuant to Government Code section 12940(n) and the California Fair Employment and Housing Act.

Our firm encourages legally mandated interactive processes continue throughout all phases of medical treatment.