I’ve written before about watching out for contingent language in settlement and mediation agreements.  They can sink a settlement and invite Claimant’s to back out.  A condition written in your agreement can mean there is no agreement, unless it is binding upon both parties.

Of course, the grandaddy contingency of them all is a settlement with a Medicare Set-Aside (MSA) and the parties agree to wait for approval of the MSA from the Centers for Medicare & Medicaid Services (CMS).  I’ve always viewed settlements solely contingent upon CMS approval as settlements that are not worth the paper they are written on.   As E/C’s we are all afraid CMS could blow up a settlement and demand more money for the MSA, hence the contingency.  However, to have an enforceable settlement, we need language that bounds both parties to the CMS contingency, like giving Claimant and E/C the option to appropriate additional funds to the MSA should CMS demand more money.

Now there is a new case that puts into question whether MSA settlement contingencies are really contingencies at all.

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