As we all know, the new law of the land is the Affordable Care Act which allegedly covers all persons within the United States with affordable healthcare. Love it or hate it, it is the law and I think the smart practitioner will want to use this in an effort to help their management of workers’ compensation cases and settlements.
So far, it does not appear that the Affordable Care Act has requirements for review and approval such as Medicare does for workers’ compensation settlements. The ACA law specifically states that it will cover pre-existing conditions. Therefore, it is my opinion that you can settle your workers’ compensation claim with future medical benefits and then turn around and enroll in Covered California and have your pre-existing or industrial injury covered from day one.
In determining whether or not this is an option, the parties need to first look at whether or not Medicare is involved. If Medicare is involved then the CMS rules needs to be followed. If they are not involved, we would then look at what the costs are for an overall healthcare package as opposed to a workers’ compensation future medical award.
On cases where the defendants are paying in excess of $6,400.00 (maximum out-of-pocket expenses) per year in future medical benefits, it might make sense to make an offer to the injured worker and/or their attorney to do a Compromise and Release of the future medical. It could be pointed out that not only are we providing money to the injured worker to subsidize their Affordable Care Act benefits but also some of the deductible and out-of-pocket expenses. Not only does the injured worker get complete healthcare coverage but he still gets his workers’ compensation injury covered through the Affordable Care Act.
Obviously there is going to be some negotiations as to how much money is going to be paid for this. Do you include the premiums, the deductibles, the out-of-pocket expenses or a lesser amount?
Obviously you are trading one or limited part of the body for an entire healthcare coverage plan so there should be some discount to the defendant for providing this type of settlement and resolution. This resolution, of course, is not going to fit every situation. If the future medical award is of a limited benefit, it may not make sense to try and buy it out along these lines but it is something that can be used to tip the scales towards having the applicant settle their future medical award and getting them off the workers’ compensation books.
Certainly if the injured worker is somewhat older but not yet entitled to Medicare benefits, there is going to be a limited window here where you might provide enough monies to cover healthcare insurance for that period between the industrial injury and the time that the applicant gets to Medicare.
I believe that creative use of the new ACA statute will lead to additional settlements of future medical awards as the downside to the injured worker is much less now that there is a safety net with the Affordable Care Act in place. I think it is up to the defendant to be proactive in checking out the options that they now have in resolving future medical awards utilizing all resources that they now have at their disposal.