The Commission will not allow a blanket release in the settlement that released claims other than the workers compensation claim that was being settled.
Best Interests Of The Claimant
The claimant's attorney must explain why the settlement was in the best interests of the claimant or it would be rejected.
A permanent total disability claim could require a lifecare medical plan. If the settlement does not provide one the settlement could be rejected.
Social Security Disability
The claimant's Social Security Disability status has to be addressed. If the claimant is on Social Security, the Commission is willing to approve a lifetime probation so that any offset can be eliminated.
Medicare's interests has to be considered. If the settlement exceeds $25,000.00 and the claimant is on Medicare or eligible for Medicare then a Medicare set aside account has to be approved by CMS. If the settlement is for more than $250,000.00 and the claimant has a reasonable expectation of being on Medicare within 30 months, then a Medicare set aside account has to be approved by CMS. CMS pre-approval is not required if the insurer is willing to pay any additional amounts above the proposed Medicare set aside account. If the claimant's Medicare status was not clear the settlement could be rejected.
Child Support Liens
He noted settlements are subject to child support liens. He suggested appropriate language for addressing liens in the settlements. If liens are not addressed the settlement will be rejected.
if the settlement terminates medical care there must be a specific date as to when medicare care will end. If there were outstanding medical bills this needs to be addressed in the settlement to avoid future litigation.
Attorney Fee Lien
It is suggested that the parties attempt to work out any lien of a prior attorney. The failure to do so would result in a delay in any approval of the settlement.
The Commission still makes the casualty carrier ultimately responsible even if the settlement is going to be paid through the purchase of an annuity from a life insurance company.
No Hold Harmless Clause
The Commission discourages the attempts by insurers to shift Medicare responsibility to the claimant. Thus, the Commission will reject a clause that attempts to do this.
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