My Husband was injured as a Volunteer Firefighter on December 26, 2002 - Case has not settled - can I also sue?

Asked about 2 years ago - Reading, PA

On 12/26/2002 my husband was injured while fighting a fire in our Township - He was a Volunteer - since he was "working" for the Township - the claim has been filed with workers comp. We are still fighting for Medical Benefits and have gone through CMS and received papers with Set-Aside. Now all of a sudden his doctor wants to take him off of one of his medicines which is Fentanyl 1200 mcg. This was not included in the set-aside amount as it is not medicare approved. I am worried about paying for Medicare part D and other items as I work for a non-profit and my husband was the main breadwinner. Can I sue for them to pay some of this as I am now the main breadwinner?

Additional information

Also - Fentanyl is the most expensive drug that he takes and is the one that allows him to have a semi-normal life. His back was broke and he has had two major surgeries - he has a steel cage on his spine along with screws to hold it in place. Fentanyl is an opiad drug that is being used off-label in his case after he participated in a study during the beginning of his injury. Without this particular drug - he is in considerable pain.

Attorney answers (4)

  1. Michael John Mueller

    Contributor Level 5

    4

    Lawyers agree

    Answered . The short answer is that you cannot sue your husband's employer. Since he is still living, he is the only one that can sue his employer in workers' compensation court for medical and wage-loss benefits.

    It sounds like your husband is in the process of settling his claim. Once his case is settled, he will no longer have the right to ever come back and sue his employer or their insurance company for additional cash or medical benefits. You should be very sure that you've gotten the best deal possible and that your husband's future medical treatment is covered...because Medicare won't cover some things.

    Please make sure you contact an attorney to have a thorough review of your case before you settle. Good Luck!

  2. Robert L. Cullen

    Pro

    Contributor Level 13

    1

    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . I would agree with Michael. My assumption is that you have an attorney since you are talking about getting CMS approval of a MSA (Medicare Set-Aside). If you do, you need to have this conversation with them. If you don't, you need to get an attorney as the MSA can only be used to pay for treatment that Medicare would have paid for. I assume that this is why the doctor is taking him off of the Fentanyl. Bottom line, you should get an attorney as this is not something that you should be doing on your own.

  3. William A. Kovalcik

    Contributor Level 6

    Answered . You certainly do not have to proceed with the Medicare Set Aside if it will not cover an important medication that your huband needs. Throughout the settlement process, you should be represented by an attorney, particularly when Medicare issues are involved

  4. Robert Alan Huber

    Pro

    Contributor Level 12

    Answered . It is unlikely you can sue and be successful. The MSA did not include medication and at that time, it was not an item which had to be included for MSA approval.

    I strongly suggest you speak with your doctor about a few options: 1) an alternative lower cost medication;
    2) for samples of the patch which some practices give out for free; and/or 3) appealing directly to the drug manufacturer of the patch for th to provide him with the patches due to medical need and inability to pay out of pocket for them. Many manufacturers will help out for 6 months - 1 year.

    Goodluck.

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