Is Medicare Primary or Secondary to Workers' Comp in California?

Is Medicare primary or secondary to workers' comp in California?

Workers' comp is the primary payer for a work injury. Medicare is the secondary payer and should not pay first.

This rule comes from federal law, not a California statute. The Medicare Secondary Payer law, 42 U.S.C. section 1395y(b), names a workers' comp law or plan as a "primary plan." Medicare steps back whenever a primary plan has paid, or can reasonably be expected to pay, for the same care.

The Centers for Medicare and Medicaid Services (CMS) describes the same rule in plain terms: Medicare should not be the first payer when another program, like workers' comp, is responsible for an injury. Coordination of Benefits rules decide which one actually pays first on a given bill.

This page covers that payment-order question only. A related but separate step reserves money from your settlement for future care instead; that step, called a Medicare set-aside (MSA), is covered on its own page, linked below.

What does it mean that Medicare "pays conditionally"?

Medicare can pay a bill up front, on the condition that it gets repaid once workers' comp, or a settlement, actually covers that cost.

CMS calls this a conditional payment. Its own description: a conditional payment is one Medicare makes for a service another payer may be responsible for, and it must be repaid once you get a settlement, award, or other payment for the same injury. See CMS's recovery overview for how that repayment process works.

The federal statute sets the same condition from the other side. Medicare may pay if the workers' comp payer "has not made or cannot reasonably be expected to make payment... promptly," and any such payment is conditioned on Medicare being reimbursed afterward. In practice, this is the safety net that keeps your care from stalling while payment is sorted out.

Does this change while my claim is delayed, disputed, or denied?

Yes. A gap or dispute in your California claim is exactly when Medicare's conditional-payment rule tends to matter most.

Under Labor Code section 5402, your employer's insurer generally has 90 days after you file a claim form to accept or reject it. While that decision is pending, the insurer's liability for medical care is capped at ten thousand dollars. If treatment runs past that cap, or the claim is later denied, a gap can open between what workers' comp pays and what you actually need treated.

If you are on Medicare, Medicare can fill part of that gap with a conditional payment rather than leaving a bill unpaid. Once your workers' comp claim is accepted, settled, or awarded, Medicare expects to be paid back out of that recovery for whatever it already covered.

What about future medical care after I settle, the Medicare set-aside?

That is a separate step from this page's topic. A set-aside reserves part of a settlement for care after the case closes, not for bills while the case is open.

This page covers who pays first on current bills. An MSA instead sets aside money from a settlement for your injury-related care after the claim closes, since settling usually ends your employer's duty to keep paying for treatment. Our guide on how Medicare set-asides work in workers' comp covers that process in full, including when CMS reviews one. If you are deciding whether to close out future medical care in your settlement at all, see keep medical open or close out in a California workers' comp settlement.

What should I do if Medicare is part of my claim?

Tell every provider you have an open workers' comp claim, keep any Medicare notice you receive, and loop in your attorney before you settle.

Make sure your treating providers bill your workers' comp claim first, not Medicare, whenever treatment is accepted and authorized. If you do receive a conditional-payment letter or a bill from Medicare tied to your injury, do not ignore it; save it for your attorney. Before you sign a settlement, confirm whether Medicare has a repayment claim outstanding and whether a set-aside applies to your case. Our guide on SSDI and workers' comp in California covers how Medicare eligibility often arrives alongside Social Security disability, if that applies to you.

Sorting out who pays first, and what Medicare expects back later, is easiest to get right before you sign a settlement, not after. Yazdchi Law P.C., based in Palmdale, represents injured workers across California and reviews each matter individually.

Call (661) 273-1780 or use the contact form for a free consultation about how Medicare fits into your own claim.