Date: Fri, 1 Oct 2010 01:46:24 -0700 (PDT)
From: Jon L. Gelman <jon@...
Subject: [Net-Gold] [Workers' Compensation] Medicare Denied Reimbursement
Medicare Denied Reimbursement
The 11th Circuit Court of Appeals
has held that Medicare is not
entitled to reimbursement under
the Medicare Secondary Payer Act (MSP)
when the the surviving children's
allocated share of proceed is the
result of a wrongful death claim.
The Court reasoned that under Florida
law, any claim of the estate is
separate and distinct from the claim of
a survivor. Under Florida law, child's
loss of parental companionship
claim is a property right belonging
to the child.
Medicare through the Secretary of
Health and Human Services (HHS) did
not participate in the Florida probate
action. HHS had refused to recognize the
validity of that decision of allocation
of the Florida Probate action.
"Counsel for the survivors and the
estate acted sensibly, in a
cost-effective manner. The nursing
home neglect claim was settled for
the full value of the available
insurance. Clearly, if the language of
the field manual applied, in practice,
it would lead to an absurd
Catch-22 result. Forcing counsel to
file a lawsuit would incur
additional costs, further diminishing
the already paltry sum available
for settlement. This flies in the
face of judicial and public policy.
"The Secretary's position would have
a chilling effect on settlement.
The Secretary's position compels
plaintiffs to force their tort claims
to trial, burdening the court system.
It is a financial disincentive to
accept otherwise reasonable settlement
offers. It would allow tortfeasors to
"Without citing any statutory authority,
regulatory authority, or case
law authority, the Secretary and the
district court's reliance upon
language in a field manual is unpersuasive.
The Secretary is not entitled to any share
of the Burke surviving children's loss of
parental companionship claims.
The decision may have a sweeping
national impact on workers'
compensation dependency claims, as
they are also separate and distinct
actions against an employer.
Bradley v, Sebelius, ____F. 3d _____,
2010 WL 3769132 (C.A. 11 Fla. 2010)
For over 3 decades the Law Offices
of Jon L. Gelman 1.973.696.7900
have been representing
injured workers and their families who
have suffered work related accident
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Posted By Jon L. Gelman
to Workers' Compensation
at 10/01/2010 04:46:00 AM