When Can a Plaintiff Attorney Take Fees on WCMSA?



On March 19, 2014, a Louisiana appellate court rendered judgment in Benoit v. MMR (2014 La. App. LEXIS 716). There, the issue before the court was whether plaintiff attorneys were entitled to collect fees on the seed money portion of the Workers’ Compensation Medicare set-aside Arrangement (“WCMSA”) as determined by the parties and approved by the Centers for Medicare and Medicaid Services (“CMS”). Importantly, the Court looked to the express language of the parties’ settlement agreement for guidance.

There, the parties agreed to the following: “The Medicare set-aside funds in this case are to be self-administered. The Claimant has been provided with the directives [*5] issued by CMS regarding his rights and responsibilities in this regard. The Claimant understands that the MSA funds must be placed in an interest-bearing account, and this account must be separate from the individual's personal savings and checking accounts. The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare. If payments from this account are used to pay for services that are not covered by Medicare, Medicare will not pay injury related claims until these funds are restored to the MSA account, and then properly exhausted.”

Based on this language agreed upon by the parties, the court affirmed the Office of Workers’ Compensation’s denial of plaintiff’s request. In the coming days, we will provide a substantive Practice Tip so that parties who may wish to revisit this issue may better understand the potential argument for and against taking fees on the future medicals portion of a workers’ compensation award.

Learning & Resource Center

Leave a Comment