Hamberger & Weiss LLP

CMS Expands WCMSA Re-Review Process to Allow Submission of New Evidence

Traditionally, the submission of a WCMSA to CMS was a one-shot affair. Once the parties received a WCMSA approval letter from CMS, the set-aside amount indicated in the letter was not subject to re-review unless CMS made an obvious mistake of fact or evidence that pre-dated the original submission that was not included in that submission was discovered. Except for these narrow circumstances, CMS would not consider newly submitted evidence in a request for re-review of a previously determined WCMSA.

With the publication of its latest WCMASP User Guide, Version 5.1 (7/10/17), CMS has expanded its re-review process to include what it calls Amended Review. This will allow the parties to a workers' compensation settlement to submit new medical evidence to CMS, even after receipt of the WCMSA approval letter from CMS, subject to certain limitations described below. Why would someone want to do this? Amended review would allow the parties to apply for a lower WCMSA than that approved by CMS if new medical evidence supported the request. For example, if CMS included lifetime use of opioid medication in its WCMSA approval letter, but subsequent to the issuance of the approval letter the claimant weaned from the prior medications, the parties can submit medical evidence showing the successful weaning and apply to CMS for approval of a lower set-aside amount.

Amended Review is not without its limitations, however. Cases subject to Amended Review are subject to the following parameters:

1) The original submission of the WCMSA for pre-settlement approval was submitted 1 to 4 years from the date of the requested re-review;

2) Only one Amended Review request can be made per case. If Amended Review is denied, another cannot be requested; and

3) The new proposed WCMSA must differ from the original approved WCMSA amount by 10% or $10,000, whichever is greater.

The Amended Review process will allow parties to reconsider settlement of claims previously thought too expensive to settle due to a high WCMSA approved by CMS, assuming medical evidence exists to support the request for a lower WCMSA. For assistance in reviewing a case for potential Amended Review by CMS or for an initial WCMSA submission to CMS, please do not hesitate to contact one of our Statewide MSA/Section 32 Department leaders, Dan Bowers, Joe DeCoursey, or Nicole Graci.

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