All workers' compensation claims are subject to a specific time limit on the filing of a lawsuit. This statute of limitations (SOL), which varies state by state, is to ensure cases are filed in a timely manner. If the SOL expires, no matter how legitimate the claim, it can be barred from ever being heard by the court.
In Nebraska, the statute of limitations is (a) two years from the date a medical bill is paid by the workers' comp carrier, (b) two years from the last date the workers' comp carrier pays indemnity benefits (disability payments), or (c) the date to which the SOL is extended by order of the court after a trial.
With the SOL in mind, if you have suffered a work-related brain injury and are considering settling your workers' comp claim, you must carefully calculate your future cost of medical care. Because a brain injury has life-long implications, regardless of your age at the time of injury, if you live long enough, you will one day be eligible for Medicare benefits. The Centers for Medicare and Medicaid Services (CMS) does not want the cost of future medical care for a work-related injury to be shifted from the workers' compensation insurance carrier to Medicare.
In many cases, the CMS will require a Medicare Set-Aside (MSA) account-a financial arrangement that allocates a portion of your workers' comp settlement to pay for future medical services related to your injury. These funds must be depleted before Medicare will pay for treatment related to the workers' compensation injury.
The idea behind a MSA is to protect Medicare's “future interests.” But how can you know what those interests are? How can you possibly know what kind of care you will need for the rest of your life and how much that care will cost? Typically, an experienced workers' compensation attorney will contract with a person or entity that specializes in making these estimates. This results in a reasonable estimate of your future care, based on your doctors' opinions and past experiences with medical care related to your type of injury. This estimate will include your future annual costs for everything from prescriptions to doctors' visits, to surgeries, to injections and other medical procedures likely to be needed as a result of your work-related injury for the rest of your life. Then, this estimate is submitted to CMS for approval. As a part of the settlement, the workers' comp insurance carrier is required to fund the total of these expenses in the form of an annuity or a direct payment to the injured worker.
An alternative to the Medicare Set-Aside may be to settle the indemnity portion (lost-wage support, permanent disability benefits, vocational rehabilitation) of your workers' comp claim, leaving medical benefits open for your lifetime. Because the CMS is requiring MSAs more often than ever before, indemnity-only settlements are becoming more popular. However, some states will not allow these types of settlements, and they have drawbacks as your lawyer can explain.
If you have suffered a brain injury as a result of a work-related accident, you are strongly advised to seek the counsel of a lawyer with broad, deep knowledge of workers' compensation statutes to learn whether a lawsuit should be filed to prevent your claim from being nullified by your state's SOL. For more information, contact the Brock Law Offices at our office.