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03-27-08, 09:09 AM #1
Wal-Mart takes brain-damaged former employee's long-term care trust fund to recoup money it spent on her medical bills
A collision with a semi-trailer truck seven years ago left 52-year-old Deborah Shank permanently brain-damaged and in a wheelchair. Her husband, Jim, and three sons found a small source of solace: a $700,000 accident settlement from the trucking company involved. After legal fees and other expenses, the remaining $417,000 was put in a special trust. It was to be used for Mrs. Shank's care. Instead, all of it is now slated to go to Mrs. Shank's former employer, Wal-Mart Stores Inc.
Two years ago, the retail giant's health plan sued the Shanks for the $470,000 it had spent on her medical care. A federal judge ruled last year in Wal-Mart's favor, backed by an appeals-court decision in August. Now, her family has to rely on Medicaid and Mrs. Shank's social-security payments to keep up her round-the-clock care.
"I don't understand why they need to do this," says Mr. Shank on a recent visit to the nursing home, between shifts as a maintenance worker and running a tanning salon. "This girl needs the money more than they do." Mrs. Shank, who needs help with eating and other basic tasks, spends more time alone since Mr. Shank had to let her private caregiver go. At some point, he says, she may have to be moved from a private to a semi-private room in the nursing home where she lives.
The reason is a clause in Wal-Mart's health plan that Mrs. Shank didn't notice when she started stocking shelves at a nearby store eight years ago. 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.
Sharon Weber, a spokeswoman for Wal-Mart, declined to discuss the details of the Shanks' case, but said the company was obliged to act in the interest of the health benefits of its employees as a whole. "While the case involves a tragic situation, our responsibility is to follow the provisions of the [company health] plan which governs the health benefits of our associates," she said.
"Employers are trying to make sure these plans run as efficiently as possible," says Jay Kirschbaum, a senior vice president at global insurance broker Willis Group Holdings. "They also have a fiduciary duty to the plan and the entire group of employees that are covered by it."
The Recovery Practice
In cases like the Shanks', where injuries and medical costs are catastrophic, accident victims sometimes can be left with little or none of the money they fought for in court. Health plans are increasingly adopting language such as Wal-Mart's, which dictates that it is to be paid first out of any settlement, regardless of what remains for the injured person. Moreover, the victim is responsible for all legal costs in pursuing the suit.
Few such cases have attracted as much attention in legal circles as the Shanks'. Mrs. Shank took a job in 1999 stocking shelves at a Wal-Mart store in Cape Girardieu, Mo. She jumped at the shift from 11 p.m. to 6 a.m. so that she could spend days at home with her three sons, Mr. Shank says. After a probation period, she qualified for benefits under the Wal-Mart health plan in February 2000.
One day about three months later, as she and a girlfriend were touring local yard sales, a semi-trailer truck plowed into the driver's side of her minivan. Her friend's injuries were minor, but Mrs. Shank suffered major brain trauma and spent the next several weeks in intensive care. She drifted in and out of a coma, and the hospital, for months.
"One doctor didn't give her any chance," says Mr. Shank, a maintenance worker at Southeast Missouri State University. Her medical bills climbed past $460,000. The health plan paid them promptly. "They were terrific in that respect," he says.
It also sent Mr. Shank several notices that he was to inform Wal-Mart's health plan before he settled any suit. In 2002, the Shanks did sue and won a settlement from G.E.M. Transportation Inc., owner of the truck. The firm had only $1 million in liability coverage, though. For his own losses, Mr. Shank received $200,000, of which $119,000 remained after legal expenses. He says he spent most of it toward a one-story house fitted with ramps and wider doors, which is more accessible than the family's previous three-level home.
Mrs. Shank's own settlement was $700,000. After legal expenses and attorney fees, the remaining $417,477 was placed in a court-created special trust designed specifically for Mrs. Shank's future care. The Shanks' lawyer, Maurice Graham, wrote the Wal-Mart health plan informing them. Mrs. Shank had received no funds directly, he said, and therefore had nothing to pay Wal-Mart back.
Nearly three years went by, Mr. Shank says, before they heard again from Wal-Mart. Mrs. Shank struggled a year rotating in and out of the hospital and rehabilitation programs. She could no longer use her right arm or three fingers on her left hand because of neurological damage. She couldn't feed or dress herself and conversations with her family were limited to all but simple questions. Eventually, her husband moved her to a nursing home for around-the-clock care. Medicare and Medicaid pay for the nursing home. Mr. Shank used some of the trust's proceeds to continue paying a private aide to care for her there.
'A Decent Quality of Life'
"We wanted her to have a decent quality of life, and we still had the money," he says. He hoped he could also use it to pay the roughly $130,000 in bills for Mrs. Shank's rehabilitation and a return hospital visit after her coverage expired.
But in August 2005, Wal-Mart re-emerged with a lawsuit against the Shanks demanding repayment for $469,216 in medical costs out of their settlement. It charged that the Shanks had violated the terms of the health plan by not reimbursing it. The company also demanded payment of legal fees and interest for the cost of suing the Shanks for the money.
Mr. Graham, the Shanks' attorney, says he approached Wal-Mart's attorneys about negotiating a compromise, but was told the health plan wanted to proceed with the lawsuit. "We're not contending that Wal-Mart isn't entitled to a payment. We're saying they're entitled to one based on equity," he says. Since Mrs. Shank wasn't fully compensated for her damages in the first place, he argues, Wal-Mart should also expect only partial reimbursement.
In August last year, U.S. district judge Lewis Blanton sided with Wal-Mart, ruling that when Mrs. Shank signed on to Wal-Mart's health plan she was obligated to abide by its terms.
The ruling came six days before the Shanks' 18-year-old son, Jeremy, was killed in September last year in Iraq shortly after he arrived in the U.S. Army's 25th Infantry Division.
Mrs. Shank went to Jeremy's funeral. But because of memory problems due to her injuries, she gets confused about what happened. On a recent morning, she cried several times and asked what had happened to her middle son. Mr. Shank says that he obtained a divorce from Mrs. Shank this year, partly because of advice from a health-care administrator that she might be more eligible for public aid as a single woman. Mrs. Shank, who has been declared incompetent by a court, hasn't been informed of the divorce by her family.
Accident Victims Face
Grab for Legal Winnings
Wal-Mart Paid Bills
For Mrs. Shank, Then
Sued for Money Back
By VANESSA FUHRMANS
November 20, 2007
03-27-08, 09:23 AM #2
I don't really have any thoughts on the suit but I am sorry to me the part of the story about them divorcing so they can get more public aid is total BS.
03-27-08, 11:52 AM #3
Maybe they can hire her back as a greeter, then her long-term care can be covered by their shitty health plan?Molly Weasley makes Chuck Norris eat his vegetables.
Do not puff, shade, skew, tailor, firm up, stretch, massage,
or otherwise distort statements of fact.FBI Special Agent Coleen Rowley
03-27-08, 12:08 PM #4
What a dipshit man. Yeah I bet he divorced her for her own good.He who has the money, signs the cheques.
He who signs the cheques, makes the rules.
He who makes the rules, has the power.
He who has the power, has the money.
03-27-08, 12:26 PM #5
Wow. Just wow.May you rest in peace Daddy and may you never hurt again. I love you and miss you and can't wait to see you again.
03-27-08, 07:54 PM #6
Desperate times sometimes call for desperate measures. Yes, single people get more aid from the government in situations like this, and no, I can't fault him for the divorce. It's just a piece of paper in some cases, just like (for some people) a marriage certificate is just a piece of paper. What I think should happen is if you don't use your insurance beyond the out of pocket deductible, you should be able to get the money back that you paid out in premiums, plus interest. If they're going to insist on recouping their losses from the sick and injured, then damn, I'd be wanting to recoup my losses, too.
03-27-08, 09:08 PM #7
So the money she paid in premiums to the health care provider doesn't count for shit. They get to collect premiums and get to recoup the money they're out for providing health care insurance? Sounds like theft to me.Do not war for peace. If you must war, war for justice. For without justice there is no peace. -me
We are who we choose to be.
R.I.P. Arielle. 08/20/2010-09/16/2012
03-27-08, 09:15 PM #8
03-27-08, 09:19 PM #9
If I could afford it, it would cost me about 800.00 a month just to cover my wife on my health insurance. If that is paid over a 20 year period with no major health issues the provider collects almost 200,000 dollars. If something major happens and they have to provide major health coverage, they are intitled to keep the 200,000 they've collected, invested, profited from, etc and then sue me for the money I've collected because I suffered in a major accident? WTF?! Am I seeing this incorrectly?Do not war for peace. If you must war, war for justice. For without justice there is no peace. -me
We are who we choose to be.
R.I.P. Arielle. 08/20/2010-09/16/2012
03-27-08, 11:15 PM #10
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