Oberjuerge Obtains Successful Medicare Trial Decision

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.

EPS Medicare Decision


EPS U.S. Supreme Court Maritime Case Stands Submitted


The United States Supreme Court heard oral argument on March 25, 2019 in the matter of The Dutra Group v Batterton, which case now stands submitted for decision.   The issue to be addressed is the scope of a seaman’s damages under the general maritime law, namely whether punitive damages may be sought.   On behalf of the maritime employer/vessel owner Defendant, EPS was successful in having both the Trial Court and 9th Circuit certify the interlocutory appeals sought.   Wilmer Hale joined in as Supreme Court co- counsel.


The EPS team has long made law in all areas of their practice, be it general liability, LHWCA, subrogation, CA workers’ compensation or maritime law.   On just this issue now to be decided by the SCOTUS, EPS has previously litigated the Jones Act/general maritime damages scope in multiple matters at all judicial levels- (CA) State and Federal Trial Courts, State and Federal Courts of Appeal, and now, the U.S. Supreme Court.   This issue will now be decided for all of America by the SCOTUS.




EPS “Subro” Win Ordered Published: (Duncan v Wal-Mart)

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In an appellate matter of significant importance to California carriers and employers, the EPS workers’ compensation subrogation team obtained a victory at the Court of Appeal, Fourth Appellate District.  The Court of Appeal issued a decision reversing the Trial Judge, and vindicating the benefit provider’s rights under Labor Code Section 3856.

The Decision can be read here:  http://www.courts.ca.gov/opinions/documents/G054220.PDF



EPS successful on “SUBRO” matter before the Court of Appeal

In a workers’ compensation subrogation matter handled by Barry Ponticello and Renee St.Clair, EPS was able to achieve a reversal of the Trial Court’s ruling on the distribution of judgement proceeds under labor Code Section 3856.

In a 15 page decision (Duncan v. Wal-Mart Stores; Hartford Accident and Indemnity Claimant and Appellant G054220 (2017)), which is being requested for publication by multiple parties and interests groups,  the Court of Appeal for the Fourth Appellate District, Division Three, modified the Trial Court’s Order, in effect reversing the Trial Court’s finding and allowing Hartford its full recovery.  Barry Ponticello argued the matter before the Court of Appeal.

“Subro” matter argued before the 4th District Court of Appeal

court of appealIn  a workers’ compensation subrogation matter involving post Trial division of judgment proceeds and the application and interpretation of Labor Code Section 3856, EPS appeared before the 4th District Court of Appeal, Division Three in Santa Ana.   Barry Ponticello, a veteran of California Supreme Court, California Appellate Court and U.S. Circuit Court of Appeals for the 9th Circuit oral arguments, argued on behalf of the benefit provider.