TOP ENLISTED MARINE CITES BAD LAW

Military's care recovery law bad, Marine Corps' top enlisted man says

By James W. Crawley
UNION-TRIBUNE STAFF WRITER

January 4, 2004

Along with duty to country and educational benefits, no-cost medical care for service members and their families is a big reason recruits join the military.

But recruiters don't mention a little-known law that allows the military to garnishee insurance and court settlements from service members and dependents injured in traffic accidents and other nonmilitary calamities.

Even the Marines' top enlisted man, Sgt. Maj. of the Marine Corps John Estrada, wasn't aware.

"We come into the military with the understanding that (medical care) is free, but I found out that it's not really free after all," said Estrada, who has served for 30 years, including tours at all three Marine bases in San Diego County. "They need to tell people when they come in about this law," he said.

As the Corps' sergeant major, Estrada, 48, isn't some anonymous noncom. He is the face of the Marines' 158,000 enlisted men and women.

He advises the Marine Corps commandant, Gen. Michael Hagee, on enlisted issues such as pay, morale and family support services.

But Estrada only learned about the 41-year-old law, called the Medical Care Recovery Act, when the Navy filed a claim in November on insurance proceeds from a May traffic accident in which his wife, Midge Estrada, was nearly killed by a wayward driver. She suffered brain damage and spent more than two weeks in a coma.

The Navy wants the proceeds from Estrada's and the other driver's auto insurance policies – an estimated $100,000 total.

The money would help reimburse the Navy for his wife's hospital bills, including emergency brain surgery, weeks in intensive care, a military air ambulance flight from Sacramento to Washington, and physical and occupational therapy. The bill could reach $1 million or more for care that could last for years.

"They're trying to get a quarter from me to pay off a million-dollar bill," Estrada said, suggesting that any insurance payout would have little effect on the Navy's budget but a huge impact on his finances.

He said it's money the family needs to take care of expenses that military benefits don't cover, such as baby-sitting, nonmedical costs and a replacement vehicle for the car destroyed in the accident.

Estrada, who was the top enlisted man in the 3rd Marine Air Wing at Miramar Marine Corps Air Station until June, said he is taking up the fight not so much for his wife but to inform other enlisted men and women and their families about the law.

"If a person in my position is unaware of the law, there's a lot of others who aren't aware of that law," he said.

Millions have been collected for reimbursements.

Last year, the Navy obtained nearly $11 million in reimbursement from insurance claims and court decisions that would have gone to sailors, Marines and their dependents. Over the past two years, the total reimbursements were about $21.5 million.

"It's an $11 million-a-year business for the Navy," said Pat Leonard, deputy director of the claims, investigation and tort litigation division of the service's Office of the Judge Advocate General.

Leonard said the collection effort saves taxpayers because most of the recovered money is funneled back to the military to cover medical care. About $1.8 million is used to pay attorneys, staff and expenses at three claims offices, including one in San Diego, that process reimbursement requests, she added.

The attorneys file claims for reimbursement against insurance companies. The government also can join lawsuits filed by an injured service member. It does not dock anyone's pay or bank accounts.

During fiscal year 2003, which ended Sept. 30, the Navy filed 8,796 claims involving Marines and sailors.

The Navy would not comment on specific cases, citing privacy.

The Army and Air Force also collect medical reimbursements, known as affirmative claims in military legalese.

Last year, the Pentagon collected a total of $27.6 million.

On average, the military collected $1,410 per case that involved recovery. The Navy had the highest collection average, $1,642 per case, last year.

"Not in every case do we send a demand and they send us a check," Leonard said. "Sometimes we get a check. Sometimes we get a check in two or three years."

In most cases, the Navy settles for less than the hospital bill, she said.

Estrada and others may have little recourse, said attorneys familiar with the law.

"It's completely fair," said Gene Fidell, a Washington attorney who represents service members. "The government has paid hard cash to run the base hospitals and pay doctors, so why shouldn't they go forward and try to get some of those expenses back?"

While Fidell agrees with government policy to seek money from the at-fault driver's insurance, he said it doesn't seem fair to also seek proceeds from a service member's own insurance policy, such as in Estrada's case.

"Legally, the government has the right, but this is not the type of situation the law envisioned," Fidell said. He suggested that the law should not hurt a service member's financial situation.

2003 was a trying year for the Estrada family.

The sergeant major served in Kuwait and Iraq with Miramar-based Marines during the winter and spring. As the fighting subsided in Iraq, Estrada was selected in April for the top enlisted post.

Midge Estrada, his wife of 13 years and a former Marine officer, was waiting on the tarmac when he returned to Miramar on May 13.

On May 15, she flew back to Sacramento, where she and their two preteen children were living. As she was driving home from the airport, a pickup truck rammed the rear of her 1994 BMW, catapulting it sideways into the back of another pickup.

While everyone else walked away from the collision, Midge Estrada was left in a coma, suffering severe head trauma, a collapsed right lung and other serious injuries. For days, doctors feared she would die.

Slowly, she started coming out of the coma.

Since May, the 39-year-old has had to relearn how to talk, read and walk. She still has trouble remembering things. Her hair is finally growing back over the scars from brain surgery. She'll have a year or more of additional therapy, but may never be the same person she was before the accident.

"It's a tough injury to get better from," she said recently. "I think I'm getting better."

Meanwhile, Estrada has been trying to care for his wife while holding a high-profile job that places hard demands on his time, with frequent travel and long hours at work. Family and friends have helped at home with Midge and the children.

Estrada's concern about his family's welfare escalated in December, when his attorney called to say the Navy had placed a lien on any insurance settlement from his wife's case.

"I feel like we've had insult added to injury," Estrada said. "Haven't we suffered enough?"

He added that no one has returned his calls seeking information about the claim.

"I'm not blaming the military," Estrada said. "We just have a bad law."

James W. Crawley:
(619) 542-4559; jim.crawley@uniontrib.com




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