Wal-Mart Sues Brain Damaged Employee As Reward for Giving Her Health Insurance
| Fri Nov. 23, 2007 8:58 AM PST
Just when you think that Wal-Mart had already exhausted every last possible strategy for screwing over its employees, here comes this story in the Wall Street Journal. Deborah Shank, a Wal-Mart employee gets into an accident with a semi and ends up permanently brain-damaged a few years back. Her Wal-Mart health insurance paid her medical bills, but she also sued the trucking company for damages. She wins $700,000, which after legal fees and expenses, nets her about $400,000, which was put in a trust to pay the nursing home she now lives in.
But Wal-Mart gets wind of the settlement and turns around and sues Shank for $470,000, the money its insurance company paid for her care from the accident. Now, the woman is reliant on Medicaid and Social Security and Wal-Mart apparently got a much needed windfall.
Wal-Mart isn't alone in such behavior. Insurance companies seizing lawsuit winnings from catastrophically injured Americans is a common practice that gives lie to the notion that anyone gets rich off a personal injury lawsuit these days, as insurance companies often get first dibs on any judgment or settlement in such cases. But Wal-Mart's cruelty, as always, is extreme in this case. Not only is Shenk profoundly disabled, but while her family was fighting off the company in court, her son was killed while fighting the war in Iraq. Not even bad PR like this, apparently, can eke out a drop of compassion from the retail giant.
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Comments
Im from Canada and was physically man handled by there security in walmart, when he was in the wrong BY CALLING ME A F#CKIN WHORE, i have black and blue bruises under my arm from him pinching my skin so hard, there is a police file and its going to civil court, cuz im not layin down on this one, police officer said when he went back 4 days later to walmart, the manager turned white and thought this issue was going to be swept under the rug is what the officer said, i have since talk to walmart canada head office, lets see what comes of this,,, the police said that the security in walmart is brutal and treat people like crap , they get calls all the time about it, YET NOTHINGS DONE..WHY IS THAT??IM SOOOO DONE WITH WALMART ?..VERY BAD CUSTOMER SERVICE 100%
Folks...
What you are seeing and experiencing is the systematic destruction of America.
You're brought this on your selves. Where were you when American companies decided to take advantage of tax breaks, and other incentives to dismantle there companies, just to save a few bucks...Not to mention the American lives that were distroyed, and move to the third world that was created for just this plan some 50 years of plus ago.
The money hungry interests of America are determined to make this new world order.... a global market and ram it up our asses.
How many of you stood up to complain. How may of you took to the streets like I did during Vietnam to protest.
Then the Neocons put moron Bush in the white house and literally placed a voice box and a real brain in his coat. This was the next step in the destruction.
The invasion of Iraq to control the oil supplies. One year before the actual Invasion "Fat Boy Chaney" invited all the heads of the oil companies and they began to cut up Iraq just like we would cut up a pie. So the oil companies, Exxon, British Petroleum, Chevron, Shell, just to mention a few all lite there $ 50.00 cigars and patted each other on there backs and dreamed of the soon to be profits. No one cared about the American Deaths and related misery they would cause. After all, you know Money is thicker than Blood.
Then to protect their interests they create and hired "BLACKWATER" to protect them. And to steal more tax money the neocons began to privatize all of Iraq. Does Chaney's Halliburton ring a bell. "NO BID CONTRACTS"
Wake up America; open your eyes, and ears? before it's too late.
Wall- Mart is just another link in the chain.
And you want another Clinton in the White House. Clinton, Bill or Hillary is just another Democratic version of the neocons.
Im from Canada and was physically man handled by there security in walmart, when he was in the wrong BY CALLING ME A F#CKIN WHORE, i have black and blue bruises under my arm from him pinching my skin so hard, there is a police file and its going to civil court, cuz im not layin down on this one, police officer said when he went back 4 days later to walmart, the manager turned white and thought this issue was going to be swept under the rug is what the officer said, i have since talk to walmart canada head office, lets see what comes of this,,, the police said that the security in walmart is brutal and treat people like crap , they get calls all the time about it, YET NOTHINGS DONE..WHY IS THAT??IM SOOOO DONE WITH WALMART ?..VERY BAD CUSTOMER SERVICE 100%
Folks...
What you are seeing and experiencing is the systematic destruction of America.
You're brought this on your selves. Where were you when American companies decided to take advantage of tax breaks, and other incentives to dismantle there companies, just to save a few bucks...Not to mention the American lives that were distroyed, and move to the third world that was created for just this plan some 50 years of plus ago.
The money hungry interests of America are determined to make this new world order.... a global market and ram it up our asses.
How many of you stood up to complain. How may of you took to the streets like I did during Vietnam to protest.
Then the Neocons put moron Bush in the white house and literally placed a voice box and a real brain in his coat. This was the next step in the destruction.
The invasion of Iraq to control the oil supplies. One year before the actual Invasion "Fat Boy Chaney" invited all the heads of the oil companies and they began to cut up Iraq just like we would cut up a pie. So the oil companies, Exxon, British Petroleum, Chevron, Shell, just to mention a few all lite there $ 50.00 cigars and patted each other on there backs and dreamed of the soon to be profits. No one cared about the American Deaths and related misery they would cause. After all, you know Money is thicker than Blood.
Then to protect their interests they create and hired "BLACKWATER" to protect them. And to steal more tax money the neocons began to privatize all of Iraq. Does Chaney's Halliburton ring a bell. "NO BID CONTRACTS"
Wake up America; open your eyes, and ears? before it's too late.
Wall- Mart is just another link in the chain.
And you want another Clinton in the White House. Clinton, Bill or Hillary is just another Democratic version of the neocons.
Submitted by capt (not verified) on Fri Nov. 23, 2007 11:06 AM PST.
Good article, and Walmart - GRRRrrrrrrr.
And yet Americans still flock to the retail giant becuase they are so cheap compared to everywhere else. Their dollar goes farther at WalMart. You are after the wrong villian here--blame the government, that takes such a large bite out of their wallets. As long as Americans are forced to shop here, WalMart will continue to flourish and throw their weight around.
Submitted by truggle45 (not verified) on Fri Nov. 23, 2007 2:08 PM PST.
They would care about the publicity if the news got to are large swathe of their customers. But an awful lot of people are not all that reachable and much mainstream media cowers at the idea of sacrificing those Walmart ad dollars. I have no solution but but my low grade trickstering.
Many times counties will take out a hospital lien when an indigent patient is taken care of and the county foots the bill. If the patient prevails in a lawsuit, the county can recoup the monies spent to take care of the patient. This is almost unheard of in private sector business. Leave it to Wal-Mart to do such a thing. Wal-Mart saddens me, people should not treat people as they do.
Submitted by Susan Cass (not verified) on Fri Nov. 23, 2007 9:34 PM PST.
Makes me glad I decided not to even go past the door of the joint. It would save me money but I could never live with myself.
Don't know about anyone else but I'd rather pay a little extra and be able to sleep at night.
ANOTHER reason that the conservative claptrap logic of "let the market be the arbitor" and avoid single payer at all costs is such flawed policy. As the article in the WSJ makes plain, this is becoming more common as the market adjusts to increasing health care costs. The administrative costs of programs like Medicare and Medicaid are so much lower than the nightmarish convoluted bureaucratic anything-but-standardized private carrier requirements and procedures but yet this never seems to seriously enter the debate. The payout for the womans treatment for her injusries and the payout for care she requires but would not have done so had she not been involved in a situation (apparently) not of her design are separate issues. How WalMart can dip into one type of compensation to satisfy an unrelated outlay boarders on the criminally insane!
I am less inclined to blame WalMart as I am about the legal reasoning of the judiciary in supporting such flawed thinking. WalMart is trying to get away with as little as possible as corporate entities are construed to do. They are not human but a legal construct with single-minded purpose. Just because a term in the agreement specifies predatory conditions in justifiable compensation received, there is no absolute condition which prevents courts (not tasked with that single-minded dictum) from disregarding such tortured reasoning.
I didn't understand this at all... so I read the WSJ article. For those of you who have not read it... here is the explanation...
"Like most company health plans, Wal-Mart's reserves the right to recoup the medical expenses it paid for someone's treatment if the person also collects damages in an injury suit.
Until recently, many employers didn't vigilantly enforce the provision, and some states and federal courts didn't think the claim held water. But as the cost of covering workers continues to escalate, employers and health plans are getting more aggressive about going after the money. A Supreme Court ruling last year also has given them a clearer legal map to suing employees and winning."
Submitted by Blue (not verified) on Sat Nov. 24, 2007 10:32 AM PST.
I have an activist aunt who I have frequently teased for her Wal-Mart pickets and protests. I owe her an apology.
Submitted by Anthony Gair (not verified) on Sat Nov. 24, 2007 3:24 PM PST.
Every HMO carrier has a subrogation or lien clause in its policy allowing them to recoup expenditures made for injuries suffered in the accident giving rise to the personal injury lawsuit. Experienced attorneys will always attempt to negotiate these liens prior to finalizing the settlement. These liens can usually be reduced by at least one third and often more. The experienced attorney will enter these negotiations with a clear strategy. For example one approach is to demand that the carrier share in the legal expenses and reduce its lien accordingly. Another approach is to tell the carrier if they will not reduce the lien you will go to trial and if you lose the carrier will get nothing. Courts have also held these clauses to be unenforceable based on ambiguous language contained in them and the manner in which the settlement was placed on the record.See for example: Singh v. Long Island Jewish Medical Center.
I too read the article and the situation is still unjust! Having also read Anthony Gair's excellent addition to the comments, it seems that some of this is legal representatives not preparing thoroughly to encounter tactics which do not pass the smell test. They may, in fact, be limited in what they can "negotiate" which is where legislative correctives might be justifiably employed (which IMHO should include a single payer system).
As I pointed out, there ought to be made a distinction between monies paid out for medical expenses proper (which WalMart could justifiably be compensated for) and monies allotted to special care and consideration for conditions prevailing into the future as a consequence of actions no fault of the victim. I am sure that those considerations were taken into account when the award was calculated but apparently no distinction was made between the two.
WalMart should not be entitled to the monies reserved for the special care now required due to the negligence of the truck driver and his company but only that which was used to compute medical expenses which were proximate to the accident and which WalMart then paid for. I presume that WM made no contributions to the special care incurred by the Shanks to ensure a reasonable quality of life for Ms. Shanks. THEN if WalMart wants to pursue that allotment, justice might be served.
Since the Shanks "lost" 300K in expenses, WalMart ought to incur a like amount of "loss" in what they might reasonably expect to recoup. Given that they get first dibs on ALL awards, this is unjust no matter what arrangement is stated in the "agreement" between WalMart and their employees.
While I thank Guy Incognito for providing the "explanation", it doesn't seem to alter the innate injustice of the situation. Given the current administration and the former congressional majority (not to mention judicial makeup after 8 years), I am certain that these sorts of arrangements typically go unchallenged. Here is hoping the future governing bodies might take a more progressive outlook concerning this enforcement.
I'm sure Sam Walton has been spinning in his grave like he was on a spit since his children took over his company. My family stopped shopping there ages ago due to the mega-corporation's total lack of integrity and ethics. But then I suppose in this day and age of the corporations acting like shadow governments; "business ethics" is just another oxymoron.....
I hope the $470,000 was worth all the negative publicity. Sueing a brain damaged accident victim for more than she was compensated in her private lawsuit is like finding out the CEO likes to smash kittens with a hammer for fun. I occasionally shop at Walmart although I don't like it. Stories like this help make the decision not to shop there, as there are alternatives like Target for cheap stuff. Way to go Walmart! You have one less customer to piss off!
worked there. believe every word. awful awful awful only comparison shop there and rarely. It is unamerican to support them as they are - evil evil evil but the poor sometimes have no choice but should buy only necessities, no frills and stick up for the workers - I have nightmares about the awful monsters at crestview fla management and above them
THESE PEOPLE ARE VILE!!!!!
Oh, but Wal- Mart claims that it isn't fair that other employees should 'subsidize' Mrs. Shank's care.
But it is fair to let the taxpayers pick up the tab? Which is that happens when Medicare pays the bills.
Wal-Mart is the Anti-Christ. In every possible sense
Submitted by Polly Odyssey (not verified) on Mon Nov. 26, 2007 2:10 PM PST.
Why are Wal-Mart shoppers so...so...BLIND to this stuff?!
I don't quite understand why Wal-Mart is sueing on behalf of its insurance company. Wouldn't it be the insurance company that is sueing? Those poor insurance companies, they are losing money every day and would you believe it, no sympathy from the public.
Submitted by BlueBerry Pick'n (not verified) on Mon Nov. 26, 2007 2:49 PM PST.
Living proof that there are **whitecollar bastards** who make a sound living doing this cruelty...
...& NOBODY ever asks, "gee, am I a bastard?"
do you ever go to a PARTY or HOLIDAY EVENT & actually ASK PEOPLE WHAT THEY DO TO DESERVE THOSE SALARIES??
...nah. nobody does, nobody wants to rock the boat. wouldn't wanna miss out on crap pre-fab canapes & banal conversation. nope. go along to get along, eh? You bring it on YOURSELVES by ignoring the BASTARDS in YOUR MIDST.
Challenge them. Challenge & find out what people DO TO EARN THAT SNAZZY SALARY.
Lompoc Wal Mart hurt my son when he worked there Intwo months he was told by the ass Manager!!! If you dont want to work here , I will be happy to get you your pay check.My son is disabled! and two other disabled adults went through the same thing!My son hasnt been the same since depressed and now on medician! WAL MART I BAN YOU ! After this another handycapped person Oh my God! This was the last staw! My son tried to help in everyway he could for them and a flake that is a so called ass. Manager said that to him? Resend this to everyone WAL MART Sues Handycapped People and steals there money!Give her back the 470,000 you horrible people CEOs of the company!
Yet another of the many reasons why I do not like to shop Wal-Mart. Didn't this company get a start in the same region of the country that most strongly supports Bush and all his cronies in going after profit at any cost?
Wal*Mart represent the unacceptable face of capitalism, as you can see from a viewing of the Brave New Films video `Wal*Mart the high cost of low prices¨...and the prices are not so low.
Their action at law against Mrs Shank exemplifies the evil manipulation of the 14th Amendment. Designed to protect former slaves, it now protects corporations in actions that are enslaving us, for which see The Corporation.
Y'know, none of us are forced to shop at Walmart. That's a really convenient way to excuse our behavior, and our advertising-induced hunger for more and more stuff.
I get most of my clothing and furniture from secondhand stores, and by picking it up off the street, and while I've clawed my way up from having to shop at the dollar store and the rainbow store for food to the farmers' markets, I feel a whole lot better making do with what I have than going to get it all new from places like Walmart and Target.
Those places only have the clout they do because we give it to them.
Just when you think American companies can't screw their employees any more, you read a story like this. The greed factor just gets worse and worse; compassion went out the window years ago. I had friends in college that knew Sam Walton and said he was a very kind, down-to-earth man. If he were alive today, I doubt he'd be very happy having his name associated with this kind of behavior.
Why didn't the truck driver's employer's insurance pay for her medical bills? I don't think my employer's insurance would pay my medical bills if I was injured in an accident. If they did, I'm sure they'd probably sue the trucking company's insurance co or, if I personally had won some type of settlement, try to collect from me. The poor woman in this case should have sued for medical costs PLUS pain/suffering/punitive/loss/etc. It seems like Wal Mart is taking advantage of this woman but, I'd guess this is standard procedure. Most likely, her lawyer is the one who did the disservice by not collecting enough in settlement to cover medical and all the rest.
It is called ERISA. The law was intended to protect worker's benefits but under successive assaults by "conservative" judges it has become a sword to destroy workers. Basically the law allows a "plan" to write any terms it wants. Many plans interpret this to mean they can exclude coverage for any injury caused by the fault of someone other than the worker, even if there is no claim against the at fault party or grossly inadequate insurance coverage. The plans often call for "first dollars" to go to the plan with no sharing in costs or attorney's fees. The attorney she hired attempted to use a U.S. Supreme Court case that allowed a settlement that had been placed in trust to stand against the plan. Walmart attempted to "write around" that case to reach even the grossly inadequate recovery placed in a "special needs" trust to cover expenses not covered by Medicaid.
Most of the comments show that there is an awareness of how these subrogation clauses work but not how far the unfairness has been carried.
In catastrophic cases there are rarely enough insurance or other assets available to compensate the victims. Over the centuries a rule evolved that provided that until the victim was made whole e.g. expenses not paid by the subrogated interests were provided for, there was no duty to repay health insurance and other subrogors. The so called conservative courts, neo-cons and other corporatists hate the rule because it transfers money from corporations to injured people.
Result oriented courts have chipped away at victims as have conservative polititians. Better that some victims waste away on welfare than some corporation lose .00001% of its gross worth.
Now the rule is that the worse you are hurt the worse you get hurt. If the party at fault has adequate resources to fully compensate the victim fine, if the injuries are horrible and damages exceed the tortfeasor's ability to pay only the insurance companies get anything, the victim gets nothing.
Submitted by Larry McD (not verified) on Tue Nov. 27, 2007 8:29 AM PST.
Bravo, Billybookworm! It was worth sifting through the other posts to get to yours.
I feel sad for this brain damaged woman and anyone else who has been seriously injured. Wal-Mart would say they have no control over the actions of their insurance carrier, but I'm sure they have some influence. Insurance companies always seek to get reimbursed from any settlement or award. That's where the competent attorney is supposed to get them to sign off on the award for maybe ten, twenty, or thirty per cent of their costs in order to avoid litigation. Her award should have been much higher taking into consideration the insurance company standing in the wings ready to snatch this money the woman needs for a decent life in the nursing home. Medicaid would also take all of the award unless it went into a special needs trust to provide for what Medicaid does not, like dental care and special equipment.
I would like to know the name of the insurance company. Wal-Mart has its problems, but the insurance company is the greedy one. If the store had been Penney's or Macy's or Kohl's, would their insurance company have acted any differently? Awards should be required to be pro-rated, so the victim is not left penniless and the only ones enriched are the lawyer and insurance company.
If this article pisses you off, just think what you can do, and I just started... Convince ten of your friends not to shop at this 'scum-bag' organization and have them convince ten of their friends and the results will be astronomical-at least geometrical for those of us that know math....
