Settlement Agreement Not Final Where Reference Was Made to Medicare Set-Aside Allocation, But No Allocation Made. The Supreme Court of Kentucky has held that correspondence between the claimant's attorney and an insurance adjuster did not show the existence of a settlement agreement between the parties where the same correspondence indicated that the claim was to be settled for a lump sum amount and that there was to be an allocation for a Medicare Set-Aside Account, but no such allocation was made. The court reasoned that the allocation was an essential part of the settlement between the parties, stating in relevant part:

"The amount of lump sum proceeds to be allocated to a Medicare Set-Aside Account may have legal and financial consequences for the parties. The allocation is an essential element of a settlement that includes such an account. Although the dispute before ALJ Smith concerned only medical expenses, [the claim adjuster's] offer and letter of October 19, 2007 refer to a full and final resolution of the claim for $500,000.00 'to include set aside.' The claimant acknowledges that the lump sum included his right to future income as well as medical benefits. The agreement was incomplete under the circumstances because the parties clearly had not come to terms concerning the portion of the lump sum to be allocated to the Medicare Set-Aside Account."

Interestingly, when the claimant's attorney was questioned at a hearing before the ALJ about whether he and the employer's attorney ever agreed to a specific breakdown of the amount allocated to buy out medical expenses or to the Medicare Set-Aside, he responded, "No, but nobody ever cares, as you know." The Supreme Court of Kentucky has signaled otherwise and will refuse to encourage "hastily-drafted and incomplete settlement agreements."

Lexis.com subscribers: click here to read the case

All others: See Thomas Robinson's blog below to find out how to access the case for free via lexisONE.

Know what your MSA picture looks like before you reach any binding agreements! Learn more from The Complete Guide to Medicare Secondary Payer Compliance, Jennifer C. Jordan, Esq., Editor-in-Chief (LexisNexis).

The its new report - Approach Your Risk with Clear Direction: North American Insurance Market Report 2011 - Marsh says that  the soft market for the insurance industry will likely continue from 2010 through 2011. Among the report's key findings with respect to workers' compensation were despite an increase in underlying loss rates actions in California and New York, workers' compensation insurance remained a buyers' market in 2010, with average rates declining 5.2 percent in the fourth quarter. Barring an industry-wide catastrophic event, the workers' compensation insurance market is expected to remain competitive. However, the impact of recently enacted health care reform legislation will continue to be closely monitored by the market. > Read a complete summary of the Marsh study

Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law. 

 

 

 > Read the summaries & court decisions.

#1 - TX: Deceased Worker's Status as Illegal Alien Was Not Relevant For Purposes of Computing Damages in Wrongful Death Action Against Employer

#2 - WY: Tort Action Against Co-Worker Who Fell Asleep While Driving is Barred by Exclusivity

#3 - LA: Annual Sick Leave Not Included in Computation of Hourly Worker's AWW

#4 - CA: Attendant Care Award of $1.5 Million Overturned; Inappropriate Ex Parte Communications Between Attorney for Claimant and Caregiver with Medical Evaluator

#5 - KY: Settlement Agreement Not Final Where Reference Was Made to Medicare Set-Aside Allocation, But No Allocation Made

In her article on Stateline, Pamela M. Prah says that more than half of the nation's governors have laid out proposals in their state of the state addresses to address high unemployment rates and to show businesses their state is "open for business."

According to Prah, "Calls for deep cuts in spending, shared sacrifice and overhauls of state government are common themes as states prepare for what could be their most challenging budget year of the ongoing fiscal crisis."

Prah surveys the various proposals, which  include providing investment tax credits for student internships, building a bridge, a high speed rail, and a museum, covering part of workers' salaries at small businesses using the unemployment fund, and requiring a regulatory impact statement on all new legislation to determine the cost to businesses.

1. Insurers are scouring social media for evidence of fraud, by Shan Li, Chicago Tribune

2. Top 14 tips to protect against workers' compensation claims, by Nashville Business Journal
 

3. Meeting of the Minds Imperative in WC Settlements Involving MSAs, by The Official Medicare Set Aside Blog, MEDVAL, LLC

4. Can Ohio Workers Compensation Privatization Occur Without Constitutional Change? by Philip J. Fulton, Columbus Workers' Compensation Law Blog

5. Chartis and pricing comp accounts, by Roberto Ceniceros, Comp Time blog, Business Insurance

6. Workers comp benefits for injured illegal workers: where are we? Working Immigrants blog
 

7. Know Two Types of Functional Capacity Evaluations (FCE), by Rebecca Shafer, Workers' Comp Kit Blog.