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Written by: Daniel Hayes
If a claimant in a workers’ compensation claim is a current Medicare beneficiary, the carrier has certain reporting obligations to the Centers for Medicare and Medicaid Services (CMS). Under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), the carrier’s Responsible Reporting Entity (RRE) must not only report any settlement as fulfillment of its Total Payment Obligation to Claimant (TPOC), but also whether the carrier has any obligation to provide medical compensation, or Ongoing Responsibility for Medicals (ORM). The carrier’s ORM is indicated to CMS as either “yes” or “no,” reflecting whether responsibility for payment of medicals under the workers’ compensation claim is admitted or denied. Once ORM is indicated as “yes,” CMS will assume any and all medicals arising out of the accident are the responsibility of the workers’ compensation carrier as primary payer, or debtor. This ORM will trigger ongoing reviews for any Medicare conditional payments, with the Commercial Repayment Center (CRC) seeking reimbursement for these Medicare conditional payments, as necessary.
In North Carolina, there are two important statutes of limitation that may allow a workers’ compensation carrier to terminate ORM. Under Section 97-25.1 of the North Carolina Workers’ Compensation Act, a two-year statute of limitations limits the claimant’s ability to seek additional medical care after the last payment of medical or indemnity compensation, as follows:
97-25.1. Limitation of duration of medical compensation.
The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.
N.C. Gen. Stat. 97-25.1. The carrier may use this two-year period from the last payment of medical or the last payment of indemnity, whichever is later, to know and calendar when ORM should be terminated.
Under Section 97-47, the legislature provided a separate two-year statute of limitations for pursuing a change of condition claim, as follows:
97-47. Change of condition; modification of award.
Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.
N.C. Gen. Stat. 97-47 (emphasis added). The carrier may also use this two-year period from the last payment of compensation under an award to know and calendar when ORM should be terminated.
Please note, as highlighted above, the statue also includes a one-year statute of limitations for seeking a change of condition in a medical only claim. This would appear to allow the carrier to use a one-year period from the last payment of medical compensation to diary the termination of ORM in a medical only claim.
Practice Tip: With regard to medical only claims, there is some inherent inconsistency in these statutes. To our knowledge, there is no case that directly addresses the one-year change of condition period under Section 97-47 for a medical only claim. It is unclear whether Sections 97-47 and 97-25.1 may conflict with the claimant’s right to seek additional medical care in a medical only claim under certain circumstances.