Our client was a sanitation worker, who was a passenger in a truck that was involved in a rollover accident.  He sustained multiple injuries, the most severe to his neck and back.  The workers’ compensation insurer accepted the claim as compensable, and began paying income benefits shortly following the accident.  Our client’s authorized treating physician for his work injuries was a physiatrist, who referred him out to a pain specialist.  He underwent numerous injections in his neck and back with limited results.  A spinal cord stimulator was suggested as an option, but our client was reluctant to have it implanted.  Spinal surgery was not recommended at that time.

We initially attempted to negotiate settlement approximately three years post-accident.  Due to the severity of our client’s injuries, he applied for and was ultimately approved for Social Security disability benefits. Since he was on Social Security, he became eligible for Medicare.  As such, a Medicare Set-Aside (MSA) needed to be prepared, and then approved by the Centers for Medicare & Medicaid Services (CMS), prior to finalizing a settlement.  The MSA proposal was in excess of $600,000.  Faced with paying such a large amount for future medical treatment, the insurer indicated that it was no longer interested in settlement. 

Following the aborted settlement negotiation, our client underwent neck surgery.  After this change in his medical situation, the parties worked together to obtain documentation from our client’s treating physicians stating that he no longer was a candidate for a spinal cord stimulator and no longer needed some of the expensive medications that he had taken previously.  After successfully obtaining this information from the medical providers, a new MSA was prepared, which was significantly less than the original one.  It was submitted to CMS, and the approved amount was reasonable enough that the insurer became willing to reconsider settlement.  The parties ended up settling the claim at mediation a few months later.  Our client received a total of $361,500, in addition to the $120,000 in income benefits that he was paid over the four and on-half years between his accident and the time of settlement.