This just in — the Western District of Kentucky held that the Medicare private cause of action, 42 U.S.C. § 1395 y(b)(3)(A), which awards double-damages, can be brought against a workers’ compensation carrier that fails to re-pay Medicare. Estate of Clinton McDonald v. Indemnity Insurance Company of North America, No. 3:12-cv-577 (W.D. KY September 2, 2014).
Facts — On May 10, 2007, Clinton McDonald was in a automobile accident while acting within the course and scope of his workplace duties. McDonald died on November 5, 2007 as a result of the injuries suffered. The workers’ compensation carrier posited that McDonald’s death was not a result of the workplace accident. Consequently from May 10, 2007 until November 5, 2007, Medicare paid McDonald’s medical bills.
On December 28, 2009 (yes, over 2 years later), the Kentucky Workers’ Compensation Board found that McDonald’s death was caused by the accident and ordered the workers’ compensation carrier to pay all of McDonald’s medical expenses. The workers’ compensation carrier did not notify Medicare.
McDonald’s estate also had a liability claim which settled for $50K but the liability carrier would not release the funds because Medicare had a claim for reimbursement under the Medicare Secondary Payer Statute.
On or about October 12, 2011 McDonald’s estate’s personal injury attorney sent the case to Magruder Law to resolve. We tried for months to work things out with the workers’ compensation carrier to no avail.
Magruder Law filed suit on September 13, 2012 on behalf of McDonald’s estate. Two years and many briefings later, we finally won! Our client was awarded $184K which was the same amount the carrier had to repay Medicare. The amount certainly doesn’t fully compensate McDonald’s widow but it will help.
See complete court opinion here.