Alabama Workers' Comp Blawg

  • 24
  • Aug
  • 2011

Theory of Continuing Accrual Not Recognized By Court in Conditional Payment Reimbursement Claims

 Here is an update to the matter of United States v. Stricker which we first covered on the blawg ten months ago:

In this case, the Government alleged that 907 recipients of the Abernathy settlement (a “global settlement” of $300 million) received Medicare payments for medical expenses for injuries related to PCB contamination. $275 million was provided at the time of the settlement and the remaining $25 million in ten annual installments paid over a ten year period.

In its lawsuit filed on December 1, 2009, the Government sought to recover reimbursement for its Medicare payments from the corporate defendants, their insurance carriers, and certain attorneys who represented Abernathy plaintiffs and allegedly received settlement funds. The government argued that each $2.5 million annual disbursement constituted a primary payment under the Medicare Secondary Payer (MSP) statute and “re-set” the statute of limitations every time a payment was made.

The government’s case was dismissed on September 30th, 2010 due to the statute for limitations for the MSP reimbursement claim having expired.


The government next filed a motion to reconsider the matter, specifically on its “theory of continuing accrual” – the method of “re-setting” the statute of limitations every time an annual disbursement was made.
The motion to reconsider was recently denied, with presiding Judge Bowdre stating that the “theory [of continuing accrual was] lacking in law and logic.” Judge Bowdre held that that CMS’ right of recovery is established “as soon as it learns that payment has been made or could be made under workers compensation, any liability or no-fault insurance, or an employer group health plan.”
As such, the “theory of continuing accrual” seems to be dead in the water at the moment. 



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