In the workers’ compensation and personal injury fields there has been substantial debate in recent years concerning Medicare Set Asides and the powers of Medicare (CMS) to pursue claims against individuals, employers, and insurance carriers where they believe the parties did not adequately consider Medicare’s interest. The present case concerned an accepted workers’ compensation injury claim in which the worker passed away from nonindustrial causes prior to settlement or the use of an MSA. CMS subsequently contacted the self insured employer contending that medical benefits providing during the worker’s life by CMS should have been the responsibility of the workers’ compensation benefit administrator.
EPS was contacted by a permissibly self-insured employer after they received notice that CMS was asserting a conditional payment lien and in fact had referred the alleged debt to the United States Treasury Department for collection. In such scenarios CMS asserts it is a “secondary payor” and the primary payor of medical benefits must be the workers’ compensation employer or insurance carrier. Such action is usually documented via Notice of Conditional Payment Lien asserted by CMS.
Upon taking over representation of the employer, EPS appealed the adverse determination of CMS and its contractor Maximus. Following administrative appeals in which CMS/Maximus maintained it had the right to collect the alleged debt with interest, EPS requested a hearing before the Office of Medicare Hearings and Appeals (OMHA).
Following an adjudicatory hearing on September 28, 2021 involving the submission of documentary evidence and testimony from the claims examiner, EPS Partner Alex Oberjuerge submitted the case for decision with the Administrative Law Judge who subsequently issued a “Fully Favorable” Decision concluding the employer was not liable for any of the monies contained in the Medicare Conditional Payment lien.
EPS prepares Medicare analyses and CMS submissions for clients, and is pleased to have successfully defensed an effort from CMS to shift liability onto the workers’ compensation benefit provider employer. Portion of ALJ Decision below.
Barry Ponticello and Sarah Reddiconto have been requested to present to the SD County Bar issues surrounding the California Supreme Court case of Privette, and the line of cases that followed. Knowledge of this doctrine and the subsequent line of cases involving hirers and contractors (one of which was argued by Barry Ponticello before the California Supreme Court) is essential to both liability defense and wc subrogation case handling. 3rd party issues affecting both employers and employees, as well as the current state of this doctrine, will be addressed.
ENGLAND PONTICELLO & ST.CLAIR (EPS) is brimming with pride to announce that Susan L. England, Esq. (WCJ (Ret.)), regarded by many as one of the deans of California workers’ compensation, has entered her 60th year as an attorney licensed by the State Bar of California. Ms. England obtained both her undergraduate and law degrees from USC and upon immediately passing the bar exam, was admitted to practice on January 9, 1962….and the world of workers’ compensation law would never be the same.
Twice during her career, Susan undertook stints as a Workers’ Compensation Judge, at the Santa Ana, Pomona and San Diego WCAB venues. However, the bulk of her career has been dedicated to workers’ compensation defense practice and the teaching of attorneys, claims examiners and employers of the ins and outs of this specialized area of law. This includes decades of instruction with the Insurance Education Association (IEA), Council on Education in management, State and local bar associations, and various other organizations, too many to mention. Those who have been to her classes, speeches and presentations were always presented with a lively and colorful affair-in addition to learning.
Susan has inspired and paved the way for many professionals to follow, including within EPS. Barry Ponticello, who has practiced with Susan nearly half her career, remarks: “Susan’s dedication to the practice and to continued professional growth is an amazing thing to behold. It sets the standard that we are all still learning, no matter the amount of time in practice. When we periodically have had attorneys who tell us they are too many years into their practice to learn anything new, we direct them to Susan, which usually makes for an enlightening discussion. It’s been and continues to be a joy and honor to practice with Susan, who has been a great friend and mentor”. Renee St. Clair, who has also spent near 25 years with Susan notes: “ I remain grateful to Susan for taking a chance on me as a young associate with no experience right out of law school. Susan saw potential in me and helped me harness that potential to build an amazing career with steadfast relationships. I admire Susan for her legal acumen, resiliency, and longevity, and cherish her as a friend and mentor.”
60 years of practice has combined with dedication to her daughters, granddaughter, partners, co-workers and friends-all of which is still ongoing on an every-day basis. Susan has never closed the book on learning and refining her professional skills and is a model for all in this practice. At EPS, we look forward to many more years of this standard bearer continuing to lead the workers’ compensation field.
In keeping with their role as litigators successfully trying the cases that need to be tried, EPS attorneys continue to obtain “take nothings”. Just recently, firm partner Terry Wheaton of the EPS Los Angeles office, obtained a WCAB take nothing decision.
On the Federal side, Barry Ponticello garnered an LHWCA defense take nothing decision, threading the exceedingly difficult needle of overcoming the treating physician presumption, per the Amos decision.
In defending a national furniture seller against negligence and warranty claims resulting from an alleged defective product and negligent installation, amongst other allegations, EPS was successful in defending in total these allegations, through the obtainment of Summary Judgment. Plaintiff contended a cervical fracture and future lifelong pain management treatment was necessitated due to Defendant’s negligence.
The EPS civil team, led by Barry Ponticello, zealously defended the seven figure potential matter, and prevailed on not only the Motion for Summary Judgment, but also on the Reconsideration of the same, which was heard, decided and finalized in September 2020. An Award of costs was also obtained.
EPS, through its 3 offices, covers all of southern California in defending liability, workers’ compensation, maritime, and LHWCA/DBA/NAIF matters, as well as pursuing workers’ compensation subrogation.
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