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Closing or settling future workers' compensation medical benefits and Medicare Set Aside Trusts (MSA Trusts)

Posted by Robert Scott | Nov 07, 2021 | 0 Comments

Sometimes it is in the injured worker's best interest to settle or close out the future medical benefits provided by the New Mexico Workers' Compensation Act. This is a very important decision. An injured worker should retain a lawyer before making a final decision to close future medical benefits.

There are various reasons for deciding to close future medical benefits. The following are some of the reasons an injured worker might decide to close future medical benefits:

  • The worker has recovered from his or her work injuries and will likely not need future medical treatment.
  • The worker really needs money and closing future medical benefits is one way to get that money.
  • The workers' compensation insurer disputes the worker's entitlement to future medical benefits. Closing those benefits is one way to avoid losing them at trial.
  • The worker wants more control over his or her medical treatment.

There are certainly other reasons for closing future medical benefits.

If a worker who wants to close future medical benefits is Medicare eligible, then in most cases a Medicare Set Aside trust must be created. If a worker is over 65, qualified for Social Security disability benefits, or has applied for Social Security disability benefits, then the worker is Medicare eligible. If you have any doubts about this, you should consult a lawyer.

Medicare should generally not be used to pay for treatment of work injuries, especially after a worker has closed future medical benefits. If Medicare discovers that it has paid for treatment of work injuries, by law it has the right to seek repayment from the worker, the worker's lawyer, the employer, the workers' compensation insurer and their lawyer.

Therefore, money paid to the worker to close future medical benefits must be put in a Medicare Set Aside trust. The money in the trust can only be used to pay for future treatment of the worker's injuries. In that way, Medicare's interests are protected.

There are different types of MSA trusts. A description of those different types is beyond the scope of this blog.

Creation of an MSA trust is relatively complicated and can be time consuming. A description of that process is also beyond the scope of this blog.

I understand that sometimes a worker has to settle future medical benefits. However, my belief is that an injured worker is usually better off keeping medical benefits open. The New Mexico workers' compensation system is not perfect, but I strongly believe that it provides better medical benefits, in most cases, than under a MSA trust.

Once again, if you are considering closing your future medical benefits, you should retain a lawyer before you make a final decision.

About the Author

Robert Scott

“One of the most experienced workers' compensation attorneys in New Mexico.” After graduating from high school in New York, I attended the College of William & Mary on an ROTC scholarship and earned a degree in Spanish. I served four years in the United States Army as an infantry lieutenant.


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