EPS at NASP

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The national seminar (with a Top Gun theme) of the National Association of Subrogation Professionals was attended by Barry Ponticello and Carlos Americano. A night on the USS Midway and other activities were part of the subro discussions. EPS maintains an active state wide workers’ compensation subrogation practice.

WHEATON Retires

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Firm partner Terry Wheaton, who has been with the firm nearly two decades, retired from every day practice at the end of September 2025. Mr. Wheaton will continue with counseling and some conflict appearances with the firm, but has concluded his exemplary and impressive decades long trial practice.

A celebratory event was held for Terry at the EPS San Diego office.

Another EPS NINTH Circuit Victory

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At the San Francisco location of the 9th Circuit, Barry Ponticello argued an LHWCA matter involving 33 USC 928, notice and finality issues. Mr. Ponticello and the defense team prevailed following argument, and attempts at rehearing were also denied.

EPS has litigated appellate matters at the California District Courts of Appeal, California Supreme Court, United States Circuit Courts of Appeal and the United States Supreme Court.

Oberjuerge Obtains Successful Medicare Trial Decision

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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