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

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Ponticello and Reddiconto to be Featured at San Diego County Bar MCLE event

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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.

Susan England-60 years in Practice and Onward!

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.

EPS U.S. Supreme Court Maritime Case Stands Submitted

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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.

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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.

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PROBLEM CASE/DIFFICULT ATTORNEYS: EPS Morning Speaker Series

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On June 21, 2018 EPS held another of it’s Morning Speaker Series events, this time a lively session centering on the topic of problem cases and difficult attorneys.  Applicant counsel Phillip Cohen joined EPS for this event.  Mr. Cohen, a noted and longtime San Diego practitioner, advised the assembled why injured workers seek him out, common issues he sees caused by claims administrators, why and when he seeks penalties and sanctions, as well as why some of his matters pend for such a long time.   Alex Oberjuerge of EPS provided the defense view, with strategies for combatting these difficult cases and counsel.  Barry Ponticello also provided some history and litigation tactics regarding these matters.  As with all the Morning Speaker Series events, industry leaders were once again brought together for cutting edge discussion and food for thought.

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EPS Morning Speaker Series Scheduled

On June 21, 2018, EPS will conduct another of its Morning Speaker Series.  These events bring together leaders in the workers’ compensation, civil and maritime worlds with EPS attorneys to address the hot button issues of the day.  Previously, a number of topics, including a view from the bench, AME concerns and litigation trends, AMA Guides ratings and applications, and the use and legality of Tele-Medicine have been explored.

This edition will address those difficult claims that involve allegations of sanctions, penalties, interest or other concerns, how they develop and strategies to combat and defend these scenarios.

 

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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