Chicken Little? Not in Delaware Where Blue Hen Case Rules MSA Commutation Enforceable

Chicken Little? Not in Delaware Where Blue Hen Case Rules MSA Commutation Enforceable

Do you ever sit over at the Board on Thursday "Motion Day" and wonder what the outcome is as to some of the cases being presented?  The scenarios that present themselves from time to time, and whether they be novel issues of law or funky procedural circumstances, you just aren't sure of how the Board is going to rule?  This post is one of those cases.

Today's Chicken McNugget of a case presents the issue of what happens when the parties agree to commute the claimant's indemnity with a conditional commutation of medical treatment, contingent on a Medicare Set-Aside and CMS approval of same, and the claimant then balks when the MSA amount comes back.  Dwayne Rochon v. Blue Hen Spring Works, IAB# 12266353 (9/29/10)(ORDER) answers this question.  This case was sitting at the bottom of a pile of mislaid cases decided several months ago and I felt that familiar little quiver that always overtakes me when I read something that has......precedential value.  Some folks get excited when they find a $20 bill walking across a parking lot.  That is nothing compared to the joy that overwhelms me when I find a case like this one.

Here is the Cliff Notes version of the facts-- MSA amount comes back with CMS approval.  The amount isn't too shabby-- $210,000.00--which the employer is quite willing to fund.  Claimant, whose bank account is already $150,000 richer from an indemnity commutation, wants to back out based on the argument that "the amount approved by CMS to be contributed by Employer to the Medicare Set-Aside for Claimant's future medical care is woefully underfunded based on the annual amounts Employer has paid for Claimant's care in recent years."  Employer's argument?  "If it's good enough for CMS it's good enough for us and it should be good enough for you".....okay, well that's my synopsis of their argument.

Bottom line is that the Board agreed with the Employer.  Medicare and the CMS folks know what they are doing.  Claimant was ordered to execute the papers to consummate the transaction.  My observations:

*       It may have been important that the commutation was considered "non-severable"

*       The CMS/ MSA people can be relied upon and the Board would agree

*       Sometimes that MSA figure comes back much lower (or much higher) than anticipated

My personal feeling is that this claimant was a few eggs short of a Western Omelet.  There was an allegation of fraud, which the Board didn't quite comprehend, given that the MSA threshold amount came back almost 10 times higher than the Employer's initial valuation of the future med care....and the Employer was still willing to fund this.

This decision, I might add, is a little morsel of genius from Hearing Officer Angela Fowler.  When I originally wrote this post with my Blue Hen references and the little bird theme I have going on....I didn't appreciate that the author was Angela Fowler....get it?   Is that just too funny.....or does God share my sense of humor?

And as for Sweet Caroline.... The Ursuline Raiders Lacrosse Team still only has two losses.  They beat Charter and Tatnall this week and will play Wilmington Friends tomorrow.  In the coming weeks be looking for cases worthy of being titled-- The Prom Post and The Graduation Post.  I will be typing through my tears..... :<(

Irreverently yours,
Cassandra Roberts

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

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