Surgery and the MSA – How to Exclude it, Hopefully

Feb 3, 2021

 

One of the challenging tasks for MSA allocators is persuading CMS to exclude a surgical allocation when a future surgical procedure is mentioned in the medical record. Although the facts and circumstances of each case differ, three MSA allocations approved by CMS in 2020 provide guidance. As stated in §9.4.3 of the CMS Workers’ Compensation Medicare Set-aside Arrangement Reference Guide: “Medical pricing may vary based on injury, age, location, and other factors. Each submission is reviewed independently of other submissions for claimants with the same injury and age. This accounts for any differences in WCMSA amount determination.”

Case #1: Treater v. PQME. Claimant sustained injuries to the bilateral upper extremities and low back. Surgery was performed on the upper extremities; no surgery was performed to the low back. The treating physician commented on future medical care as follows: further surgery for the upper extremities was not anticipated and there remained a possibility the claimant could eventually require surgery for the low back (type of surgery not identified). The PQME opined repeat decompressions for elbow, wrist and hands may become necessary, and there was no indication of future low back surgery – though a visit with a spine specialist should be kept open if symptoms significantly worsened.

The proposed allocation argued against allocation for any future surgery. CMS excluded surgery for the upper extremities, but included a lumbar decompression surgery. The treater’s future medical care opinions were adopted; the PQME’s future medical care opinions rejected. Of note, the argument to exclude an allocation for lumbar surgery as it was only a possibility and not probable or recommended was rejected. Author’s Note: It is our position CMS should only allocate for future surgery if the treating physician or the past treatment indicates future surgery is a probability.

Case #2: Treating Orthopod and Internist. Claimant underwent a partial knee replacement (medial compartment) in 2017 and was released by the orthopedic surgeon without comment on future knee surgery. A very involved primary care physician who had been seeing the claimant monthly for the knee, despite the claimant’s condition having been stable for over two years, authored a letter indicating she only needed to be seen yearly, but added if claimant’s condition worsened he may need a total knee joint arthroplasty. Claimant had a 16-year life expectancy.

The proposed allocation requested exclusion of future surgery given the claimant had retired from work, her condition was stable, radiographs showed the partial knee replacement components were solid and anatomically positioned, the orthopedist did not comment on future surgery, and the internist was speculating on the need for further surgery. CMS allocated for a revision of the partial knee replacement, stating future surgical intervention was anticipated.  As a general rule, CMS will allocate for a revision knee replacement if the claimant’s life expectancy is at least 15-20 years. The WCMSA Reference Guide states: “a reasonably healthy and active 45-year-old claimant who recently had total knee replacement surgery is likely to require a revision of the surgery (second knee replacement) during his 30-year life expectancy, as the replacement joint wears out.” In this case, CMS seems to have taken the middle ground in allocating for revision of the partial knee arthroplasty instead of the total knee arthroplasty. Author’s Note: It is our position CMS should not have allocated for the partial knee replacement given the cited excerpt from the Reference Guide and the facts of the case.

Case #3: Claimant Refuses Surgery. Claimant sustained a torn shoulder rotator cuff. Early in the post-accident treatment, the orthopedic surgeon stated it seemed very likely surgical repair of the rotator cuff would be necessary. Claimant was not interested in surgery. After six months of physical therapy, claimant had recovered 80% to 85% of normal function, returned to work and remained adamant against undergoing surgery. In anticipation of submission of an MSA proposal to CMS, Claimant agreed to return to the orthopedic surgeon to explain he was satisfied with the result and had no intention of ever undergoing surgery. The orthopedic surgeon noted the possibility of surgery if claimant’s condition worsened, but at the time of the re-evaluation, surgical intervention would likely not be necessary.

In support of excluding future shoulder surgery, it was submitted an allocation for future medical expenses should be based on what is reasonably probable, not what is possible. In this case, CMS adhered to the following provision in section 9.4.1 of the Reference Guide: “the WCRC (Workers’ Compensation Review Contractor) evaluates the likely need for, and prices medical treatments and prescription medications for, the expected duration of the claimant’s life.” Because surgery was not likely needed, it was properly excluded.

Conclusion. As the cost of surgery escalates, especially for fusion surgery and implantable pain control devices, it is important to submit all reasonable factual and legal arguments to try to persuade CMS to exclude surgery from the MSA allocation in cases where future surgery is not a certainty. The definitive evidence to ensure exclusion of future surgery is a certification or notation in the record by the treating physician(s) stating future surgery is not anticipated. In many cases, obtaining such evidence from the treating physician is not an option because the treating physician is not willing to totally exclude surgery from future treatment. When the treating physician states surgery is a possibility if the claimant’s condition worsens, all favorable medical evidence should be emphasized as the basis for CMS to exclude future surgery. Although the trend of the WCRC seems to be to include future surgery, it is apparent from the three summarized cases that certain facts and arguments will occasionally persuade CMS to exclude future surgery from the MSA allocation.

Our team of Workers’ Compensation and Medicare Secondary Payer compliance attorneys work together toward better outcomes for your claims.  Our team helps insurers and employers achieve better results by incorporating legal principles and arguments into our MSA allocations.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.

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