Court Upholds Dismissal of Employee’s Action Seeking to Force Employer to Fund CMS-Approved Medicare Set-aside

In Hunter v. Rapides Parish School Bd., 2014 La. App. LEXIS 2657 (3rd La. Nov. 5, 2014), the Louisiana Third Circuit Court of Appeal affirmed the judgment of the Workers’ Compensation Judge (WCJ) dismissing an action in which the employee, Ms. Hunter, sought to force her employer, the Rapides Parish School Board (RPSB),  to fund a CMS-approved Medicare Set-aside (MSA).   Prior to the CMS determination, the parties reached a settlement agreement and it was approved by the WCJ.  The terms of the agreement required RPSB to pay Ms. Hunter $19,000.00 and to establish a Medicare Set-aside (MSA) in the amount of $79,937.77.

RPSB submitted the MSA proposal to CMS and received a rejection.  CMS required the MSA be valued at $94,265.00 instead. Following the CMS rejection, RPSB chose to pay medical expenses as they arose rather than fund the MSA and sent a certified letter to Ms. Hunter notifying her of the same.  Ms. Hunter subsequently sought to force RPSB to fund the CMS-approved MSA of $94,265.00.  However, she admittedly knew RPSB was submitting the MSA proposal to CMS and acknowledged that nothing in the settlement agreement required RPSB to fund an MSA in an amount higher than the amount she and RPSB had agreed upon.  For these reasons, the WCJ dismissed the action seeking funding of the CMS-approved MSA and the Third Circuit Court of Appeal of Louisiana affirmed the same.