Delaware IAB Enforces MSA Commutation Where Surgery Is Proposed After the Fact...and a Cupcake

Today's post is a pretty dry discussion by Sassy Cassy standards.  I stumbled across a recent Motion Day ruling that presents a potentially novel issue and has a little something to offer on the topic of enforceability of settlements.  That and the whole spectrum of issues presented by commuting medicals via MSA makes this one worth a second look.

The scenario?

   Claimant agrees to commute all future indemnity with the understanding that future medicals will be covered by a Medicare Set Aside ("MSA") to be funded by employer.

   At the time the settlement agreement is reached, the claimant is not a surgical candidate.

   The CMS approval aspect of the MSA takes roughly 14 months, after which the claimant is requested to sign the balance of the settlement documents.

   Claimant refuses to sign the commutation documents based on a development which occurs after the settlement is fully negotiated-specifically, claimant becomes a candidate for revision laminectomy and fusion surgery with hardware removal. As such, he is concerned that the MSA will be inadequately funded.

The outcome?

The Board rules that there was a meeting of the minds and the settlement is enforceable.    They will not declare the settlement invalid and they rely on Anchor Motor Freight v. Ciabattoni, 716 A. 2d 154 (Del. 1998).  They comment that "in this case there was no fraud or deception in the making of the agreement.  Both parties agreed that, if Employer could obtain CMS approval of an MSA and funded it, then Claimant would commute his receipt of medical benefits in exchange for the MSA account."  The concern that the MSA approval might ultimately be deemed invalid by CMS due to the recent surgical recommendation was considered "speculative", with the further explanation that "the Board does not have jurisdiction or authority to declare the MSA approval invalid."

The case is Anthony Hawkins v. Interstate Industrial Corp., IAB# 1243139 (8/9/12) (ORDER).

Sassy Sweet Cassycakes Red Velvet Cupcake

This wouldn't be the Detour & Frolic if I didn't take a personal detour.  I have spent my summer trying to master the art of the cupcake, and more specifically, the art of the pastry bag.  I purchased a "cupcake tower" that now makes the rounds to social and church events. Holds 100 cupcakes.  Above is an example of what have been named the "Sassy Sweet Cassycakes".  The next lunch I host for the work comp bar, expect your sweet tooth to be tickled...:>)

Irreverently yours,
Cassandra Roberts

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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