According to the United States District Court for the Southern District of Texas, Medicare’s “gorilla body” could not be squeezed into Guadalupe Caldera’s (Caldera) “workers’ compensation overalls” via a private cause of action under the Medicare Secondary Payer Act (MSP). This analogy was the court’s clever way of describing Caldera’s theory for his action seeking Declaratory Judgment that the Defendant, Insurance Company of the State of Pennsylvania (ICSP), was liable for the full amount Medicare paid on his behalf.1
Caldera injured his back in 1995 and ICSP originally paid some benefits pursuant to Texas law based upon his compensable injury and impairment rating. Additionally, Caldera applied for and received Social Security disability benefits in 1998. A few years later in 2002, ICSP filed a formal denial with the Texas Workers Compensation Commission denying Caldera additional medical benefits, asserting that the covered injury was previously resolved and that any new medical issues were not related. Although Caldera had been given notice and an opportunity to further pursue his claims with ICSP, he chose not to appeal and Medicare paid for his medical expenses including two back surgeries in 2005 and 2006 totaling $42, 637.41.