Category Archives: North Carolina

Workers’ Compensation Medicare Set-Aside (MSA) Not a “Countable Resource” for North Carolina Medicare Eligibility

Earlier this week, the North Carolina Court of Appeals issued an opinion that will improve the lives of many injured workers who need Medicaid assistance after sustaining a work-related injury. 

In the case of Phoebe Williford v. N.C. Dep’t of Health and Human Services and N.C. Division of Medical Assistance, the Court held that assets placed in a workers’ compensation Medicare Set-Aside account should not be considered a “countable resource” for purposes of determining a petitioner’s eligibility for North Carolina Medicaid. This opens the door for many injured workers to now apply (or re-apply) for Medicaid assistance even if they have a separate bank account containing thousands of dollars earmarked for future medical treatment. 

A workers’ compensation MSA is not a piggy bank that an injured worker can use for anything s/he wants. “The purpose of a MSA is to allocate a portion of workers’ compensation award to pay potential future medical expenses resulting from the work-related injury so that Medicare does not have to pay.” The injured worker must keep the funds separate from his/her other accounts, must maintain an accounting, and must only use the funds for future medical treatment related to his/her injuries. MSA accounts are regulated and injured workers must report to Medicare. CMS recently published a toolkit to help injured workers manage their MSAs. As you see, there are specific restrictions and requirements on how the money is used.

In the Williford case, the petitioner originally did not qualify for Medicaid because she had more than $2,000 in liquid assets (i.e. her MSA account). The issue before the Court was whether the petitioner’s MSA account, containing approximately $46,000, should be counted as a “financial resource for purposes of determining the petitioner’s eligibility for Medicaid.” 

The Court concluded that the WC MSA was not a countable resource because “…federal standards clearly establish that, in order for a given asset to be a countable resource, the asset must be legally available to the applicant without legal restriction on the applicant’s authority to use the resource for support and maintenance.” Because there are requirements governing the WC MSA, the funds were not “legally available” “without legal restriction” and not a “countable resource.” 

That said, when settling a workers’ compensation claim any other portion of the settlement (i.e. lump sum cash) would likely be considered “legally available” funds. If appropriate, a special needs trust should be considered in certain cases to avoid these funds from disqualifying a person from Medicaid.

North Carolina Labor Commissioner Race

North Carolina needs a Commissioner of Labor who is fair to workers. Certainly cooperation between employers and employees is key. However, when thousands of workers are not being paid their duly-earned wages, we have a problem.


In 2014, the News & Observer published an article entitled “For Many Workers Cheated out of Wages, NC Department of Labor Offers No Help.” The article stated that “[f]or at least 2,011 workers, more than half of the 3,694 who asked for help in the past fiscal year, the agency took no action. Employers didn’t get fined. No one was charged with a crime for not compensating the workers’ time and labor.” When Berry ran for office in 2000, her campaign platform centered on how “[g]overnment should tread lightly in the lives of people and business . . . [w]hen her agency must get involved, Berry favored working in consultation with businesses rather than confronting them.” (see N&O article from 2014, and from 2015 “At NC Department of Labor, Little Help for Unpaid Workers”).


Fast-forward to 2016. Cherie Berry is now being criticized for accepting “improper contributions” from corporate executives who have cases pending before her agency. Berry accepted $20,000 from at least four companies which were recently being investigated by the Labor Department. In particular, one donor, Ronald Cameron, is chairman and CEO of Montaire Farms which investigated for a workplace fatality. Berry responded to the criticism by saying that “everyone gets treated the same.”


Former Raleigh mayor, Charles Meeker, is running against Berry for Labor Commissioner. Meeker’s campaign focuses on improving worker safety, accurate classification of workers, and making sure that workers are paid what they are owed. Meeker also would like to remove Berry’s photo from all elevators and, in its place, put up photos of working people. Both candidates deserve serious consideration. I encourage you to evaluate them and be sure to vote for the candidate of your choice.


What is Legal Aid and Who Does It Help?

Legal Aid (LANC) is a non-profit law firm that provides free legal services in civil matters to low-income North Carolina residents. LANC has 24 offices throughout the state and provides services to residents in all 100 counties.

In order to be considered eligible for their services your household income must fall approximately 125% below federal poverty guidelines. According to the U.S. Department of Health and Human Services, the federal poverty level in 2015 for a family of four is $36,375. If the legal assistance needed involves a domestic violence case or if the client is a senior citizen then the poverty guidelines may not apply.

Examples of cases being handled by Legal Aid in N.C. are bankruptcy, student rights, unemployment compensation, Medicaid/Medicare and/or health insurance issues, foreclosures, housing discrimination, family violence, wage theft, and tax assistance.

To read more about their services offered go to:

Click here to learn more about the HHS 2015 Poverty Guidelines.

Bill's Bad Provision Would Subject NC Judges To Political Winds

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

A wise person once told me: “Don’t worry about doing things right; just do the right thing.” Have you ever wanted to do the right thing but didn’t because you might lose your job? That’s a gut-wrenching tension. Here’s how this tension works in theory and how the legislature has made it a reality for judges in workers’ compensation claims starting in 2015.

Many years ago, as a relatively young lawyer, I experienced what losing independence as a judge looks like. I was hired by a state agency on a one-time contract basis to act as a hearing officer.

The case involved a dispute between a public nonprofit entity and a private corporation. The hearing lasted a full week, with expert testimony and many witnesses. I ruled in favor of the private corporation, believing it would provide better services and be more efficient. Afterward, it became quite apparent the agency did not like that outcome. It quickly reversed my decision, and the agency got the outcome it wanted. I was never hired again. I got the message loud and clear.

My livelihood was not dependent on this type of employment, but I often thought, “What if I were an employee of that agency? Would I be calling balls and strikes fairly and doing the right thing, or would I start to favor one team over the other to make sure I kept my job?” That thought disturbed me then, and it disturbs me now.

On July 26, the legislature passed House Bill 74, a 58-page bill that has not yet been signed into law by Gov. Pat McCrory. At the bottom of the last page, a provision was inserted that removed the independence of judges at the N.C. Industrial Commission, effective July 1, 2015. If you have an accident or develop an occupational disease on the job, these judges (called Deputy Commissioners) hear your case and decide whether you are entitled to partial lost wages and medical benefits until you get back to work.
Most of these judges are competent and dedicated public servants, but if any of these Deputy Commissioners are not performing up to acceptable standards, the State Personnel System has a method for firing these employees. HB 74 has removed them from this system, and in 2015 they can be fired for any reason, without any meaningful review or recourse. True and unvarnished independence will evaporate.

A new administration is totally justified in taking a close look at performance levels and taking corrective action, if necessary. In fact, such oversight is welcome. However, impartiality and independence of these judges are absolutely crucial to the process. Without the protection of the State Personnel System, these judges would be subject to the pressure of political winds (real or imagined but always present).

Unlike many other countries, we are a nation of laws (as President Nixon found out), and respect for our legal system is a foundation stone of this country. We should make no law, take no action and support no policy that would put a crack in that foundation.

Unfortunately, HB 74 has done just that.

I am confident that some legislators voted for this bill and did not appreciate the significance of it or that they were just following the leadership to get along. Will new Deputy Commissioners follow suit and do what has to be done just to get along (and keep their jobs, too)?
I wonder what people would do if their child were playing in a little league baseball game or a Friday night football game in which they knew the umpire or referee might lose his job if he made the wrong call against their opponent.

Would they do anything about it? The governor can. He can do the right thing. I hope he does.