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Fernando Muniz Villalpando filed multiple claims for industrial injuries while employed as a laborer by two different employers, Martin Dusters and Doherty Brothers. He claimed injury to his lumbar spine at both employers and, additionally, to his cervical spine and bilateral shoulders at Doherty Brothers.

His three claims were settled by Compromise and Release. The parties’ settlement included an MSA Agreement, through which SCIF would fund applicant’s future medical treatment. The initial MSA proposal sent by Bridge Pointe to CMS provided that applicant would self-administer the MSA.

In an Addendum to the Compromise and Release Agreement, applicant agreed that Bridge Pointe would administer the MSA, with SCIF to establish the account with an initial payment to Bridge Pointe of $57,084.00, and $15,941.00 annually thereafter for 29 additional years. The Addendum also provided that SCIF would pay Bridge Pointe $3,555.00 as a fee to establish the MSA and for the initial year’s cost of administration. Thereafter, Bridge Pointe would receive an administrative fee of$1,800.00.

The agreement between applicant and SCIF does not contain any language pertaining to any future contingency involving the administration of his MSA by Bridge Pointe. There is no reference to a potential change of administration to another third party administrator, or to applicant as a self-administrator, in the event Bridge Pointe fails to provide services as a third party administrator of applicant’s MSA.

Applicant petitioned to replace Bridge Pointe and self-administer his MSA, based upon his claims that he has had problems obtaining medical services through the current arrangement. The WCJ denied his request to transfer the administration of his Medical Set-Aside Account from Bridge Pointe/NuQuest to himself, based upon the finding that applicant has not established that the MSA has been administered inappropriately.

Villalprando requested Reconsideration. The WCAB granted Reconsideration, rescinded the Joint Findings and Order and returned this matter to the trial level for further proceedings in the split panel decision of Villalprando v SCIF

The issue as framed by the WCJ does not address whether the terms of the parties’ agreement to utilize a professional administrator included any provision for a change of administration in the event Bridge Pointe ceases to operate or withdraws from providing the contracted services any time over the 30 year life of the agreement. There is no record as to the specific rights, duties and indemnifications as between the parties enumerated in the Compromise and Release Agreement. Such terms would reasonably be found in the contractual agreement that led to the MSA being administered by Bridge Pointe.

In order for applicant to be allowed to self-administer his MSA, he should establish his competency to manage his affairs and comply with the CMS requirements for self-administration. If State Compensation Insurance Fund still opposes applicant’s administration of his own MSA, it would then have to show good cause why the change should not be permitted.

Commissioner Zalewski dissented.  She would affirm the Joint Findings and Order for the reasons stated in the Workers’ Compensation Administrative Law Judge’s Report and Recommendation on Petition for Reconsideration. Applicant’s evidence of his dissatisfaction with the agreed upon administrator is not sufficient to establish good cause to set aside the parties’ agreement, reflected in the Compromise and Release regarding the administration of the Medical Set-Aside Account.