View Full Version : WALMART: Sues Brain Damaged Mother Whose Son Died in Iraq.
Debbie Shank breaks down in tears every time she's told that her 18-year-old son, Jeremy, was killed in Iraq.
The 52-year-old mother of three attended her son's funeral, but she continues to ask how he's doing. When her family reminds her that he's dead, she weeps as if hearing the news for the first time.
Shank suffered severe brain damage after a traffic accident nearly eight years ago that robbed her of much of her short-term memory and left her in a wheelchair and living in a nursing home.
It was the beginning of a series of battles -- both personal and legal -- that loomed for Shank and her family. One of their biggest was with Wal-Mart's health plan.
Eight years ago, Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.
Two years after the accident, Shank and her husband, Jim, were awarded about $1 million in a lawsuit against the trucking company involved in the crash. After legal fees were paid, $417,000 was placed in a trust to pay for Debbie Shank's long-term care.
Wal-Mart had paid out about $470,000 for Shank's medical expenses and later sued for the same amount. However, the court ruled it can only recoup what is left in the family's trust.
The Shanks didn't notice in the fine print of Wal-Mart's health plan policy that the company has the right to recoup medical expenses if an employee collects damages in a lawsuit.
The family's attorney, Maurice Graham, said he informed Wal-Mart about the settlement and believed the Shanks would be allowed to keep the money.
"We assumed after three years, they [Wal-Mart] had made a decision to let Debbie Shank use this money for what it was intended to," Graham said.
The Shanks lost their suit to Wal-Mart. Last summer, the couple appealed the ruling -- but also lost it. One week later, their son was killed in Iraq.
"They are quite within their rights. But I just wonder if they need it that bad," Jim Shank said.
In 2007, the retail giant reported net sales in the third quarter of $90 billion...
The family's situation is so dire that last year Jim Shank divorced Debbie, so she could receive more money from Medicaid.
Jim Shank, 54, is recovering from prostate cancer, works two jobs and struggles to pay the bills. He's afraid he won't be able to send their youngest son to college and pay for his and Debbie's care.
"Who needs the money more? A disabled lady in a wheelchair with no future, whatsoever, or does Wal-Mart need $90 billion, plus $200,000?" he asked.
The family's attorney agrees.
"The recovery that Debbie Shank made was recovery for future lost earnings, for her pain and suffering," Graham said.
"She'll never be able to work again. Never have a relationship with her husband or children again. The damage she recovered was for much more than just medical expenses."
Graham said he believes Wal-Mart should be entitled to only about $100,000. Right now, about $277,000 remains in the trust -- far short of the $470,000 Wal-Mart wants back.
Something you won't read in the NeoKon controlled media. Really - only 7 Google hits. (http://www.cnn.com/2008/US/03/25/walmart.insurance.battle/)
wa8rti
03-27-2008, 01:05 PM
You must remember (according to some who visit here) that big business is our friend. They are pure, altruistic and have no need of being watched over. I also have some land in Florida and a bridge in Brooklyn I'd like to sell you. :rolleyes:
Pfffffffffffffft, nothing new.
Little factoid for the libby de-luminati.
You're workers comp insurance carrier has the right to ask for repayment of medical expenses if you receive a personal injury judgement/award.
We are going through this now. Last fall my wife was in a car accident while traveling for the state. Woman pulled out in front of her and hit her head on at 40mph. In talking with our lawyer about our personal injury suit he said workers comp gets the first bite of any judgement/award.
Pfffffffffffffft, nothing new.
Little factoid for the libby de-luminati.
You're workers comp insurance carrier has the right to ask for repayment of medical expenses if you receive a personal injury judgement/award.
We are going through this now. Last fall my wife was in a car accident while traveling for the state. Woman pulled out in front of her and hit her head on at 40mph. In talking with our lawyer about our personal injury suit he said workers comp gets the first bite of any judgement/award.
By this logic, Wal Mart should be able to recoup these monies, but they will assume responsibility for her care as the court settlement was for. The $417k was for her long term care only and not for the amount that WalMart had already paid out.
So WalMart, by this logic, should be legally assuming full responsibility for the court awarded long-term care costs.
K7JEM
03-27-2008, 02:51 PM
From almost 3 years ago:
http://reclaimdemocracy.org/walmart/shank_insurance_settlement.php
The amazing thing is that no-one is suggesting that the lawyer in her case give back his portion of her money, which is apparently at least $300K.
Shank and her husband sued G.E.M. Transportation Inc. and Texas truck driver James David Shivers in federal court in September 2000 after Shank was hit by the tractor-trailer while making a U-turn on Highway 177 near Cape Girardeau, according to the original lawsuit.
Shank suffered injuries to her brain stem and other body parts and was in a coma after the accident, the suit says.
The Shanks settled in August 2002 for $900,000. After attorneys' fees and expenses, an irrevocable trust set up for Debbie Shank got $417,477 and her husband got $119,280, according to court documents.
Wal-Mart's health plan explicitly states that it gets reimbursed first out of any settlement or judgment, up to 100 percent of the total amount of the medical expenses, according to the lawsuit filed by the Administrative Committee of the Wal-Mart Stores Inc. Associates' Health and Welfare Plan. The plan also explicitly states that, "All attorney's fees and court costs are the responsibility of the participant, not the plan," the suit says.
The health plan's suit says it was never notified of the settlement or the creation of the trust, and Shank and her lawyers were repeatedly told that the health plan expected "100 percent repayment."
An attorney for the plan, Christopher Hedican, said he was "not authorized" to talk about the case.
Wal-Mart spokesman Hires would not comment further, citing federal health privacy law and the lack of a final decision about whether to pursue the case.
St. Louis lawyer Sheldon Weinhaus, who has handled similar suits, said it is not unusual for employer-sponsored health plans to try to recover money from lawsuits.
Seems like 3 courts so far have agreed with Wal-Mart.
We can't begin to know all of the facts of the case by reading a couple of news articles.
Joe
ac4ut
03-27-2008, 03:10 PM
Subrogation claims are common and workers comp companies are no exception in attempts to re-coup any fund available.
Workers comp is based on implied liability as long as the employee is at work and or working and is injured in the parameters of his or her work duties.
If third party liability is established then workers comp can file to be reimbursed for funds payed since an outside, unforseen entity was involved .
I believe this to be true in most state as "workers comp benefits can vary to some degree state to state.
Separate claims cannot be made by an employee for a workers comp injury due to the "exclusive remedy doctrine".
It all about numbers, regulations and laws and the human element does not equate from the corporate point of view.
By this logic, Wal Mart should be able to recoup these monies, but they will assume responsibility for her care as the court settlement was for. The $417k was for her long term care only and not for the amount that WalMart had already paid out.
So WalMart, by this logic, should be legally assuming full responsibility for the court awarded long-term care costs.
This is true.
Workers Comp is on the hook for all present and future health costs associated directly with my wifes accident, until she signs a release (never gonna happen). Turns out two broken ankles, a broken left wrist, seperated hip and cellular necrosis where the seat belts caught her are pretty pricey.
It's entirely possible she'll have to have a total hip replacement in the next two years, at a minimum the orthopods says she's 90% likely to develop arthritis in that hip.
k4kyv
03-28-2008, 01:25 AM
You can thank Congress for making this situation possible. As a result of lobbying by the insurance industry, an obscure clause inserted into The Employee Retirement Income Security Act of 1974 (ERISA) (http://www.dol.gov/ebsa/compliance_assistance.html) gives the insurer first claim over any personal injury benefits won in court by the victim.
Most states have a "make whole" clause in state law that gives the victim first priority, and allows the insurer only to collect what is left after the victim is made whole by the settlement. But in almost every case, those state laws designed to protect the victim in case of injury, are overridden by the federal statute.
The Provision Was Surreptitiously Added During House Floor Debate. H.R. 2830 as introduced did not contain any reimbursement language. The bill that was reported out of the House Education and Workforce Committee and the House Ways and Means Committee did not contain the language. The language was added in a Manager’s Amendment just prior to floor debate without any opportunity for debate or discussion about the issue.
The Provision Has Nothing to Do With Pension Reform. The ERISA reimbursement provision is very controversial and has nothing to do with the underlying pension reform bill. If anything, this controversial provision will bog down the conference and interfere with the ability to have the conference report completed and enacted prior to the April 15th deadline for pension plan contributions. If Congress feels that ERISA should be amended, then a separate bill, carefully deliberated, is the correct process—not sticking the provision in a Manager’s Amendment just prior to floor debate.
http://www.badfaithinsurance.org/reference/WC/0150b.htm
More on ERISA (http://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act)
ka0gkt
03-28-2008, 05:51 AM
Lets see here, in 1974, the President was either Nixon or Ford (depending upon the date) The Speaker of the House was Carl Albert (D Oklahoma) and the President of the Senate was James Oliver Eastland (D Mississippi)
So, we can blame the "Supporters of the downtrodden" once again for a law which they shall ultimately blame upon the loyal opposition.
Where's Nancy Pelosi when you need her? Oh yeah, she's one of the richest members of congress...she wouldn't want to decrease her husband's shares of Microsoft, AT&T and Amazon dot com, nor would she wish her family's real-estate business to suffer the possibility of paying out too much of their hard earned lucre.
Face it, the Democrats voted this thing in back in '74 and they won't be all that willing to get rid of it...neither will the Republicans for that matter. For all of the partisan rhetoric, for the most part, when it comes to the corporate folks who are the lifeblood of their political campaigns, the hand which feeds them might get a little love nibble once-in-a-while, but never a hard bite.
Addendum:
This piece of legislation was slipped into the law in order to do an end-run around a US Supreme Court decision which held that the self insurance folks could not sue for settlement money.
KC9IUX
03-28-2008, 06:13 AM
NeoKons?
Forget it, just one side of the same coin.
Both are controlled by the same forces, money and power.
The people in the story are like us, we have niether.
Collateral damage in the pursuit of both.
Insurance companies have always gone after responsible third parties to repay health expenses. Wal-Mart has the same right if they paid the $470,000 medical care bill for this woman. BTW, seems like pretty good health care coverage. Shelled out $500K for a stock clerk.
Where are all the nattering naybobs of union B*** S*** with their "Wal-Mart doesn't pay bennies" mantra? Seems like Wal Mart doesn't want to pay the forced union tribute to me, and that's what's got their ire.
The only reason this woman is going to lose it all is an incompetent lawyer, who negotiated a woefully inadequate settlement, or pocketed a large amount of it him/herself.
Big bad WalMart, by the way, the woman gets to keep her money.
http://article.nationalreview.com/print/?q=ZTUwODcxZDBjODQwNTdiMzc1MDc5ZGYyNjdmNDYwMmY=
Yes, Danno, we know. You can stop with the history lesson.
We also know they were shamed into doing the right thing. Without people like Charles, Olberman and others who made this known, they most definitely would've still been in court.
:cool:
Insurance companies have always gone after responsible third parties to repay health expenses. Wal-Mart has the same right if they paid the $470,000 medical care bill for this woman....
My thoughts exactly. Why didn't they go after the trucking company?
They snoozed, they loozed.
N4VGB
04-04-2008, 05:12 AM
My thoughts exactly. Why didn't they go after the trucking company?
They snoozed, they loozed.
What a silly statement, the money did come from the trucking company involved in the crash?:rolleyes: