North Carolina Court of Appeals Rules Employer Entitled to Discovery for Potential Medicare Set Aside
Roy Franco
May 13, 2014

This is an appeal taken by the injured worker with regard to her pending workers’ compensation claim.  Several issues were raised, but germane to the issue of the Medicare Set-Aside was whether the Employer Insurance carrier could compel medical discovery to assist in the development of a potential Medicare Set Aside.  The State of North Carolina agreed that it could, and even though the law on point is the Medicare Secondary Payer Act, such law did not preempt the Commission’s authority to allow for such discovery.  Under N.C. Gen. Stat. Sec. 97-91, “[a]ll questions arising under this Article if not settled by agreements of the parties interested therein, with the approval of the Commission shall be determined by the Commission…”

Although the opinion reached in SMITH v. AMERICAN NATIONAL INSURANCE COMPANY, and LIBERTY MUTUAL, 2014 N.C. App. LEXIS 479 (COURT OF APPEALS OF NORTH CAROLINA) is not final, it is a good example of how the authority of the commission can be used to better understand the medical treatment for the injured worker.  The Medicare Set Aside purpose is to set aside funds that would have been used for medical treatment that would have been paid by the workers’ compensation, as if the matter had not been settled.  It must be related to the claim, and if the records are unclear, as to what is or is not related, discovery is a good tool that is available in North Carolina, and more than likely in other jurisdictions to seek a better understanding.  Only when there is a complete picture of the injuries/illness related to the claim, will the parties have the best opportunity to secure an accurate set-aside.

At Franco Signor we look at Medicare Set Asides through a clinical lens, but as this case exemplifies, a legal review is sometimes necessary.  Medicare does not allow cost shifting, but only for injuries related to the claim, and in most cases this requires a look at medical causation, a legal issue.  Call us today and let us show how we can reduce your settlement costs.