10-31-2019; Runaway/Shocking Retaliatory Discharge Verdict; Shawn Biery on Trying to Make Sense of When You Need to Actually Provide Funding for Future Medical Care at Settlement; New IL WC Arbs
/Synopsis: Runaway and Shocking Retaliatory Discharge Verdict—What Do You Learn From It?
Editor’s comment: Dean Foods was ordered to pay more than $3 million in punitive damages as a result of a retaliatory discharge lawsuit filed by former employee/Plaintiff Jankowski, who alleged retaliation and discrimination against the milk processing facility.
According to a news release from the Wheaton-based Coffey Law Office, which represents Jankowski, a jury found Defendant Dean Foods retaliated against Jankowski by refusing to recall him back to work from August 2014 up until his termination after Jankowski had suffered an injury on the job and then refused work that exceeded his medical restrictions and filed a workers’ compensation claims.
A jury also found Oct. 16 that Dean Foods discriminated against Jankowski in violation of the Americans with Disabilities Act by failing to engage in an “interactive process” required by the ADA and failing to accommodate his disability by refusing to return him to work in one of the open positions he claimed he was capable of performing.
“The jury heard extensive evidence that Dean Foods’ management employees created inaccurate, staged photos and misleading documents to cover up their violations of the ADA and Illinois law,” according to the release.
Jankowski alleged his supervisors forced him to perform a job that required him to haul around 480 pounds up an incline despite having a doctor’s note not to do so. He claimed these tasks caused serious reinjury. According to court records, when he hauled the heavy weight up the incline Jankowski suffered another injury resulting in a disability after he began working with Dean Foods. He subsequently underwent surgery about August 2013 and tried to return to work with restrictions on or about August 2014, but Dean Foods management allegedly never offered him a position.
Dean Foods argued that it had no obligation to accommodate Jankowski’s permanent restrictions by making a light-duty position available to him on a permanent or indefinite basis when he returned in 2014.
The judgment was entered against Dean Foods – and its wholly owned subsidiary, Dean Dairy Holdings LLC, in the amount of $3,316,443.
Plaintiff firm’s release crowed “The jury also sent a powerful message to Dean Foods, and employers generally with a $3 million punitive damages award.” “Such awards are intended to punish and deter when evidence of willful and wanton or reckless misconduct is presented.”
What Can We Learn From This Stunning Ruling?
Well, for one thing, risk managers have to note the description of the civil claim above appears to be a workers’ comp matter. If Claimant wasn’t happy about coming back to work at too hard a job, that issue would be best resolved at the IWCC. It would appear Claimant may have resolved that issue to something less than his full satisfaction to then go after the employer in U.S. District Court.
Second, if you aren’t aware of the “interactive process” mentioned above when you are considering bringing any worker back to work, take a look at this quote from the EEOC’s website:
Interactive Process: The interactive process refers to an information-gathering approach used by an employer with the employee to evaluate a request for accommodation. It is intended to be a flexible approach that centers on the communication between an employer and the individual requesting reasonable accommodation, but may (and often does) involve obtaining relevant information from a supervisor and an individual's health care provider. This process begins upon receipt of an oral or written request for reasonable accommodation. The person who will decide whether to grant or deny a reasonable accommodation (at EEOC it is the Disability Program Manager (DPM)) engages in a discussion with the requestor and other relevant individuals (e.g., a supervisor, a requestor's health care provider) to collect whatever information is necessary to make an informed decision about whether the requestor is covered as an individual with a disability and, if so, what reasonable accommodation(s) will effectively eliminate the barrier identified by the requestor and permit an equal opportunity to apply for a job, to perform a job or to gain access to the workplace, or to enjoy access to the benefits and privileges of employment.
Whenever you have a worker who is claiming they need any accommodation or all the treating and evaluating doctors are providing anything short of a full duty release, start to think of the interactive process as the best path to return to work.
Even if you are terminating a worker for “no call, no show,” if there is any hint of a work restriction in the medical chart, the defense team at KCB&A and I recommend you send a letter and/or call the worker to seek their attendance at an interactive process meeting to discuss what is happening and what can be done about it. If they refuse to show up, you are on record with having tried everything you can to have the “horse drink water” without success.
If you let a worker with restrictions drift away without some documentation of efforts to be “interactive,” you might later face the sort of gigantic liability of the employer that is outlined above.
General Release/Resignations Should Forestall Such Litigation
If you are settling a claim for a worker who
Has any hint of work restrictions in the medical chart and
Is leaving your employ at the time of WC settlement,
I strongly recommend you consider getting a coincidental release/resignation signed and paid for at the time of the WC settlement. This is an intricate matter and I am able to help you in detail with my R/R form and suggestions on best possible outcomes.
I appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Trying to Make Sense of When You Need to Actually Provide Funding for Future Medical Care at Settlement by Shawn R. Biery, J.D.
Editor’s comment: To some extent, it seems that there has become a steady drumbeat for seeking a formal MSA analysis in almost every file and we have several clients in the last 90 days make the same point—they feel like they are being “sold” on something that really is just lining someone else’s pocket and delaying their settlement.
While the need to protect Medicare’s interests in any settlement is paramount, it is almost as if the simplicity of answering the question is too simple and it causes fearmongering leading to resources being wasted rather than just a simple verification.
In most cases where there is a release from care, it really can be as simple as “there is no future medical concern” since care has ended and the issue has been resolved. Future medical funding simply isn’t needed because of the end of care—so when you look at your claims ending via settlement, the one overriding factor always is whether there is a specific anticipated need for future medical. If there is no future medical component, there is no other factor to consider other than defining how you reached that conclusion. At that point, the best practice should be to memorialize your effort to consider Medicare’s interests and identify the reason there is no future medical—it can be as simple as the last treating note which indicates MMI with no future visit.
In other cases, maybe it isn’t as simple—maybe the MD suggests MMI will be reached in one year, but no future visit is noted. That would be something to either clarify with the MD or provide some value for the single future visit. Or maybe there is a pin in the ring finger which could possibly need to come out one day—in that case, some research to verify the cost of that procedure and inclusion of a value in the contract may be appropriate.
Or sometimes, there are significant recommendations—knee replacements, future surgeries, the dreaded spinal cord stimulator. In those cases, there is specifically a future concern and the interests of Medicare need to have been taken into consideration with some amount for future medical. At that point, it makes sense to seek a valuation to decide if funding future medical, or leaving medical rights open to IWCC jurisdiction is a viable avenue for settlement completion. We generally suggest you reserve the future right to set a value aside for medical even if you are leaving medical open.
Medicare has some guidance on how they handle future medical but they don’t really have a specific directive on “what do we do if there is no need for future medical”—because they don’t concern themselves once there is no future medical need.
CMS has a pretty good page which tells you about the process without any marketing angle. That page is here--https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/WCMSA-Overview.html
They also have a memo about how to determine what is reasonable (they have several memos linked to the main page)—but again, this assumes there will be future medical.
The review thresholds are just thresholds for when CMS will review. Not a guide to whether you actual need an MSA—again, whether you need future medical is dependent on a specific anticipated need for future medical.
If you think there is a need, then you can see if Medicare would review your proposal. MSA SUBMISSION IS NOT REQUIRED BY STATUTE and is voluntary, but usually recommended if appropriate.
When you If you choose to submit a WCMSA for review, CMS requires that you comply with its established policies and procedures. CMS will only review WCMSA proposals that meet the following criteria:
• The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
• The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00
For more information on Review Thresholds, please see Section 8.1 (Review Thresholds) of the WCMSA Reference Guide available in the Downloads section found at the bottom of this page— https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/WCMSA-Overview.html
Please also remember that Conditional payments are different than an MSA. In a nutshell, those are past payments already made by Medicare which should have been made by the primary payer (in WC, that would be the self-insured company TPA or the insurer) if the claimant is a Medicare beneficiary. If you have someone who is a Medicare beneficiary, there should always be a conditional payment check—and we always suggest efforts to resolve any conditional payment issue directly with CMS, since giving the money to the claimant doesn’t protect anyone if the claimant does not pay back the conditional payment. Conditional payments can also be disputed and we have had multiple occasions of success in arguing that payments listed as conditional payments are not related.
The biggest take away for anyone with questions is, if there is a concern over the medical payment issues related to Medicaid or Medicare, I always suggest you review the file to either document a specific release from care or consider covering potential future costs or leaving medical open wherein the IWCC retains jurisdiction over any determination of medical charges or repayment requests which may arise in the future from any other governmental entity.
Each case should be examined separately, and we are always here to take a look and give you our thoughts. This article was written by Shawn R. Biery and you can reach Shawn at sbiery@keefe-law.com for any questions.
Synopsis: New IL WC Arbitrator Appointments
Editor’s comment: On Friday October 25, 2019, Governor Pritzker appointed Linda Jean Cantrell and Christopher A. Harris as Arbitrators of the Illinois Workers Compensation Commission.
The following biographies come from the Governor's press release:
Linda Cantrell will serve as an Arbitrator on the Illinois Workers’ Compensation Commission. Cantrell worked as an attorney for Winters, Brewster, Crosby and Schaffer. She formerly worked as a legal secretary at Mertz Law Firm. Cantrell is a current member of the Missouri Bar Association, Williamson County Bar Association, Illinois Bar Foundation, Illinois Trial Lawyers Association and the Association of Trial Lawyers of America. She earned her Bachelor of Science from St. Louis University and Juris Doctor from the Southern Illinois School of Law.
Christopher Harris will serve as an Arbitrator on the Illinois Workers’ Compensation Commission. Harris worked as managing attorney and owner of Shield Law Firm LLC and volunteers at the Cook County Arbitration Center. Previously, he served as general counsel at International Services, associate attorney at Archer Law Group and an attorney at his own firm Johnson and Harris. He is a member of the Illinois and Chicago Bar Associations as well as the Lakeview Chamber of Commerce. Harris earned his Bachelor of Arts in Political Science from the University of Illinois and his Juris Doctor from the University of Illinois College of Law.