Workers Compensation Question

Asked over 3 years ago - Syracuse, NY

I have been on workers comp. for 8 years and the insurance carrier is trying to get me settle the medical with a medicare set aside. And I would like to know if it's my decision if I settle in any way on my medical or can I leave it open indefinitely? Is it my choice or can the insurance carrier force me to settle? At the present time my medical is around $25k a year and will go up as my pain meds increase in strength and unforeseen issues that may crop up with my dorsal column stimulation like replacing the spinal cord leads and surgeries that I may need on my arm in the future? I am at 75% disabled and will remain as such for life unless my condition gets worse in the future.

Attorney answers (5)

  1. Alan Stuart Katkin

    Contributor Level 13

    Answered . There are a number of factors to consider in deciding whether to settle your case. First of all, a settlement is always voluntary and no one can force either you or the insurance carrier to settle. Have you been classified permanently partially disabled? If so you may be entitled to lifetime indemnity and medical benefits as long as you remain disabled and are not working or are working with reduced earnings. However, under the concept of voluntary removal from the labor market, you may be obligated to seek work within your medical restrictions and produce proof of a consistent search for such employment. The law on this issue has been changing and we don't have a final answer from the Court of Appeals yet. Also, new Medical Treatment Guidelines became effective in December of 2010 so if your injuries include the neck, back, shoulder or knee, your treatment must be consistent with these guidelines or your doctors have to request a variance. The guidelines may be reviewed on the NYS Workers' Compensation Board website at If you settle your case under Section 32 of the Workers' Compensation Law and the carrier agrees to settle indemnity (weekly payments) only and leave medical open then you will continue to be entitled to treatment consistent ith the Medical Treatment Guidelines and you do not have to worry about a Medicare Set Aside. However, if you settle the medical aspect of your claim also, then Medicare's interests must be protected and a Medicare ZSet Aside would likely be required. If you follow CMS rules and have an adequate set aside or if it's approved by CMS, then once you exhaust the set aside properly, Medicare may pay for subsequent covered medical costs. The best way to determine if a settlement is in your best interests and to negoatiate the most advantageous terms in my opinion is to consult with a licensed attorney in your state who is experienced in handling workers' compensation cases. He or she will be enitled to a fee to be deducted from your settlement, but hopefully will negotiate on your behalf to increase the value of the settlement and ensure favorable terms for you. Good luck.

    This answer does not constitute legal advice nor does it create any attorney client relationship. You should consult with a licensed attorney in your state who is experienced in the area of law involved in your question.

  2. Leonard Bernard Feld

    Contributor Level 13

    Answered . Dear Madam or Sir:

    If you settle per ยง32, which is our presumption, your claim is over and done forever unless the Agreement specifically states further medical bills will be paid. Customarily, most insurance companies will not include that provision. If they are going to pay you off, they want your case to be gone forever.

    You don't have to settle.

    The Medicare set aside means you put some of the settlement into a segregated account. From that account, you pay any medical bills causally related to your job related injuries. When that account is emptied, you can apply for Medicare to pay your bills and they will ask to see the bills you paid from the "set aside".

    If you never use the set aside money, it is still your money.

    Remember, you don't have to settle; didn't you speak with your attorney about all this?

  3. Donald Roger Swete

    Contributor Level 5

    Answered . Not all settlements of this type require a Medicare Set Aside (MSA). There is specific criteria that an attorney can explain to you to see if you meet that criteria. Also, even if you have a MSA, it does not mean you automatically qualify for Medicare coverage at the time the MSA is exhausted.

  4. Gerald Gregory Lutkenhaus


    Contributor Level 18

    Answered . If NY provides lifetime medical coverage like my state of Virginia, then you can always refuse a Settlement and maintain your lifetime medical award. You should check with the NY state Commission for the status of your medical coverage.

    I don't practice in your state so this is not meant to be legal advice. For that you need to contact a NY WC lawyer.

  5. Randy William Ferguson

    Contributor Level 19

    Answered . Most states do not make you settle medicals.

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