Author: Rob Curran

The United States Supreme Court recently held oral arguments in a case which has very important implications for people who get healthcare from their employers. The case deals with the situation where an employee who gets hurt due to someone else’s carelessness then hires an attorney and then makes a recovery from the careless person, or their insurance company. Many employers in this situation use a federal law called “ERISA” (shorthand for the Employee Retirement Income Security Act of 1974) to take 100% of the settlement money away from their employees, regardless of how seriously they were hurt, how much medical care they may need in the future, or how much money they spent to get that recovery. Almost no one knows about this common practice until it affects them personally, and by then it’s too late to do anything about it.

The issue the Supreme Court is going to address is whether or not it’s an “appropriate equitable remedy” (the words used in the ERISA law) for an employer to take 100% of the money away from the injured employee, to reimburse the employer for the medical expenses it provided to the employee. The case is USAir v. McCutchen.

Every employee whoever had this conversation with is absolutely shocked that their employer can completely deprive them of any recovery. Unfortunately, it can occur, and it frequently does. Walmart did this to seriously brain-damaged employee back in 2008, and fought it out in court. Walmart won. It was only after a major publicity backlash that Walmart decided to give in and let its employees keep the money to pay for her ongoing healthcare. For example, see this link: http://articles.cnn.com/2008-04-02/us/walmart.decision_1_wal-mart-retail-giant-health-care-plan?_s=PM:US

I’m saddened, but not surprised, that the comments and questions from the Justices in the Supreme Court during the recent oral argument show that most of them, especially Justice Scalia, lack the sense of indignity almost everyone else experiences on a gut level when they hear about these situations. Nonetheless, it’s unclear what they will do. Hopefully, they will do the right thing and hold this kind of conduct is far from “equitable.”

Unbelievably, the Missouri Chamber of Commerce is trying to get the Missouri Legislature to pass a bill which would protect people who discriminate at work on the basis of race, sex, handicap and other illegal criteria.  The bill, called SB592, is sponsored by Republican State Senator Brad Lager.  It says, among other things, that if an employee files a lawsuit because of racial or other illegal discrimination, they are not allowed to sue the person who discriminated against them, but can only sue their employer.

Please contact your Missouri State Legislators and ask them to vote against this and any other bill that gives anyone immunity and prevents them from being held accountable for their actions.  (Here’s a link to look up who your State Senator is:  http://www.senate.mo.gov/llookup/leg_lookup.aspx)

For the Republicans, a party whose core beliefs include that people must take responsibility for their actions and be held accountable, supporting this bill flies in the face of all party values and logic.  The real reason Sen. Lager and big businesses are taking this absurd position is, of course, money.  Getting the individual out of the lawsuit completely changes the rules which will be applied to decide the lawsuit, and make it much easier for illegal discrimination to go unpunished. 

Below is an e-mail which I sent to Senator Dixon explain why the bill is unfair to Missouri citizens and why he should please vote against it:

Dear Senator Dixon,

I write to you to ask you to please vote against SB592. As an attorney who does practice in the area of employment discrimination law, I know something about this arena and the current rules which apply. I believe that you have been told SB592 is necessary for businesses to “level the playing field” or otherwise help business. That’s simply not true.

To me, there are two primary reasons why this bill should not pass. To illustrate this point, looked please consider a hypothetical example where illegal discrimination definitely occurred.

First, it is fundamentally unfair in that situation to let the person who actually committed illegal discrimination off the hook, as SB592 would. They should be forced into court as a defendant and held publicly accountable for their actions. To make sure that they and others have an incentive to not engage in this kind of conduct, they should face the risk of losing their own personal assets if they are found to have engaged in illegal discrimination. To do otherwise makes these people unaccountable.

In an age where people who are in favor of “tort reform” claim that there is no personal accountability these days, it is directly in conflict with that mantra for them to now sponsor legislation which shields individuals from being accountable for their actions, as SB592 does.

The second reason is a little bit more complicated. SB592’s sponsors’ desire to make sure these individual citizens are not named as defendants in discrimination lawsuits really has to do with businesses’ desire to “forum shop” to get the case into a more favorable court system.  They are engaging in the exact same kind of “forum shopping” that they complained about and passed new laws in 2005 to prevent. (“Forum shopping” occurs when someone tries to make sure a lawsuit gets heard in a particular location because the rules favor them and hurts the other side.)

The Missouri Supreme Court has held that in employment discrimination cases, summary judgment (which is where a judge throws out a lawsuit without trial) should only rarely be granted, primarily because it’s so frequently a “he said-she said” type of situation where a jury needs to actually listen to all of the testimony and evaluate the credibility of each person to reach a fair decision. By contrast, in Federal Court, judges are much more likely to throw out cases without ever even listening to the actual testimony of the witnesses. In employment cases, there is therefore usually a fight as to which court system to be in, because employers typically want cases held in Federal Court where judges are more likely to substitute their own judgment for a jury’s. We therefore need to look at how a case can end up in Federal Court.

Under the “diversity of citizenship” rules, a lawsuit can be removed from Missouri State court and transferred into Federal court if no person suing is from the same state as any defendant being sued.  This is called “complete diversity of citizenship” and it is required in order to transfer the case into Federal Court. If any of the defendants are from the same state as any plaintiff, complete diversity is not present and the case stays in Missouri State court.

Please consider an example. If a Missouri citizen sues both (i) her supervisor (also a Missouri citizen) and (ii) the employer (a Delaware corporation, for example) claiming sexual harassment in violation of the Missouri Human Rights Act, that case may not properly be transferred to Federal Court, since plaintiff and her supervisor are both from Missouri.

SB592’s provision that prevent the discriminated-against worker from suing her supervisor personally are designed to make sure that the case ends up in Federal Court, not Missouri State court. By preventing the supervisor (who is almost always from the same state as the people they are supervising) from being sued, this bill perversely prevents Missouri courts from getting involved in cases claiming violation of Missouri’s laws! In addition, if it were to pass, SB592 would favor out-of-state businesses over Missouri businesses, since only out-of-state businesses with workers here would be able to use their out-of-state citizenship to move cases into Federal Court.

The people who should be protected are Missouri’s citizens who have been discriminated against, not those who illegally discriminated against them.  SB592 is driven by a desire to make sure that juries never get to hear any testimony at all, and to let judges substitute their own opinion for a jury’s, despite the constitutional guarantee to a jury trial. If a particular claim or lawsuit has no merit, let the jury decide that, not an unaccountable Federal judge who holds his job for life.

My clients and I sincerely thank you for considering these thoughts as you make a decision on what to do in this matter. We put our faith and trust in you to do the right thing.

Very truly yours,

Robert D. Curran
Curran Law Firm
3516 S. National Ave.
Springfield, MO 65807
(417) 823-7500

A recent decision by a federal judge has created a lot of uncertainty about Medicare liens, so much so that Medicare temporarily halted its usual lien processing procedures. This will result in a great deal of hardship for Medicare recipients who are currently involved in litigation or claims, since finalizing the amount to be repaid to Medicare is usually a crucial aspect of settlement. Medicare and its private contractors have historically been incredibly slow at processing the paperwork it requires its recipient to submit in these situations, frequently taking 6 to 9 months or more to process paperwork which insurance companies usually process in a matter of weeks. Medicare’s decision to nationally halt its paperwork on all of these pending settlements will likely affect tens of thousands of Medicare recipients and drag out what was already an interminably long Medicare lien resolution process.

This situation arises when a Medicare recipient is injured in an incident caused by the fault of a third party and Medicare pays some or all of the medical bills related to that injury. For instance, if a Medicare recipient is involved in a car wreck caused by another driver, Medicare will frequently process and pay that person’s medical bills. In that situation, however, Medicare will not pay those bills immediately, but instead wait to see if the third party pays the bills. If they don’t, Medicare will conditionally pay them. Medicare views itself as a “secondary payor” in that situation. If the patient then files a claim against the driver who caused the collision and receives a settlement, Medicare requires that it be reimbursed for the money it spent. Congress passed laws giving Medicare certain rights of reimbursement, and Medicare has created many procedures, rules and regulations dealing with many different aspects of this situation. Medicare Secondary Payer Recovery Contractor (www.MSPRC.info) is a web site to assist the people involved in these matters understand the procedures. The Medicare regulations themselves, though, are far more complicated than a review of the web site would lead you to believe.

In particular, Medicare has regulations requiring its recipient to pay interest to Medicare if they don’t pay the money over to Medicare within 60 days of the recipient’s receiving the settlement money.

In the recent case, a federal judge in Arizona on June 4, 2011 imposed an injunction on Medicare preventing it from following some of its regulations on the grounds that those regulations exceeded the authority that Congress had given to Medicare. In addition, the judge granted class certification, meaning that the lawsuit will be pursued not only on behalf of the named parties to the suit but also other people who are similarly situated and affected by that situation. The particular situation involved in that case and directly affected by the judge’s ruling exists when a Medicare recipient appeals or contests Medicare’s decision about how much is owed. Under their rules, Medicare was requiring that recipient pay interest to Medicare starting 60 days after the recipient received the settlement money. The judge held that this is improper since the decision on the appeal would not have been issued in such a short time frame.

This decision is largely viewed in the legal community as a severe cutback on Medicare’s authority. Medicare’s lien had long been referred to in the legal community as a “super-lien,” meaning that they had much greater authority than other entities possessing liens, such as medical providers and insurance carriers. Medicare had also taken the position that the attorney for the recipient would be personally liable to Medicare if the attorney didn’t pay Medicare and instead turned the money over to the client/recipient. The judge’s opinion also held that the attorney is not liable to Medicare in that situation, overruling Medicare’s rules on that issue. That aspect of the decision is no doubt very troubling to Medicare since the threat of personal liability to the attorney was a significant factor in its efforts to force compliance.

This decision will no doubt be appealed by Medicare, and the landscape on these issues remains hazy at best. Even if the United States Supreme Court eventually gets the case and agrees with the recent decision, Medicare may appeal to Congress to pass laws giving Medicare specific authority to do what it has been doing all along. In the meantime, as is usually the case with Medicare, all we can do is wait.

Thank you, Governor Nixon, for vetoing SB188, the bill pushed through the legislature by big businesses seeking to avoid responsibility for discrimination in the workplace.  This bill was an insult to all of the hardworking people of Missouri, who would have had a much harder time proving that their employer had illegally discriminated against them.  Among other things, the bill would have made it permissible to fire someone for an illegal reason (such as age, race, etc.) as long as the employer claimed they also had a non-discriminatory reason fire them (which they always claim).

Gov. Nixon stood up and did the right thing, despite knowing that he would attacked for it by politicians trying to make it seem like the veto was “anti-job.”  The simple fact is that Missourians want fair jobs, working for people who don’t discriminate.

In addition to thanking Governor Nixon, I’d also like to thank everyone who contacted to urge him to veto this bill.

The fight’s not over yet, though.  The majority is going to try to override the veto, pretending that this bill will help workers.  It won’t.  Instead it takes away some of the few protections Missouri law gives them.

Please contact your legislators now (Republican or Democrat) and tell them that you don’t them to take away Missouri workers’ rights.  Tell them that you want them to support the working class by voting against an override of SB188!

“Missouri is a state that welcomes all people, and believes that everyone should be treated with respect and dignity,” Gov. Nixon said. “That means eliminating discrimination and removing the barriers of prejudice wherever they exist. Whether it be in the workplace, in housing or in public accommodations, discrimination is wrong. It will not be tolerated here in Missouri.”

Governor Nixon said that Senate Bill 188 would undermine key provisions of the Missouri Human Rights Act, rolling back decades of progress in protecting civil rights, encouraging fair treatment and fostering mutual understanding and respect among all citizens.

“This bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated,” Gov. Nixon said. “That is unacceptable.”

The bill is opposed by a broad coalition of advocacy groups representing women, individuals with disabilities and serious illnesses, senior citizens and minorities.

“Making it easier for Missouri companies to discriminate against people with disabilities or cancer, and against women, older workers and minorities will not help us create jobs or be more competitive,” Gov. Nixon said.  “To thrive in a global economy and uphold the values we share, we must be a state that continues to move forward – not backward − when it comes to civil rights and equal opportunity.”

Questions in a legal case are to be expected. It’s natural that you’ll have a lot of them, especially if you’ve never had a legal problem before. Whether you’re dealing with a personal injury case or you’ve violated the law – or anything else requiring legal counsel – a lawyer can answer your questions and help you understand what’s taking place.

Don’t Be Worried About Asking

Some people don’t want to ask their lawyer questions because they feel like they’re bothering them. If they really want to help you, though, and if they’re the right lawyer for you, they’ll answer all your questions without a problem. Try to stay organized and ask questions together so you’re not always contacting the lawyer, but don’t be afraid to get in touch if there’s something you really need to know.

Your Lawyer Is There For You

Your lawyer is your advocate. It’s their job to help you through whatever legal trouble you’re dealing with. Because of that, you should know that they’re there for you. Let them help you, and don’t be afraid to talk to them about your concerns.

Get Clarification If You’re Unsure

When you’re unsure about your legal issues, you want to have things clarified. That only makes sense. The best way to get that clarification is to ask your lawyer. They can explain the ‘legalese’ to you so you’re clear on what’s happening with your case, and that can make you feel a lot better.

When you’ve got a legal case going and you get nervous, remember your lawyer is there to help you. Ask questions and get clarification. That way, you’ll have fewer worries.

Finding a good lawyer can be difficult, but that doesn’t mean it’s impossible. You can get a referral to a good lawyer, and it will cut down on the time spent searching for one on your own. There are several ways you can use to get a lawyer you’ll really feel comfortable with.

Ask Friends And Family Who They Recommend

If you have any friends or family members who’ve used a lawyer in the past, ask them about their experiences. You might find a great lawyer that way. If you don’t find one, you may at least determine who you want to avoid or which lawyers won’t be right for you.

Use A Lawyer Referral Network

There are many lawyer referral networks around. There are some to be found online, and there are also some that can be located in the phone book. Asking around is a good idea, and you can get a lot of good recommendations and information from referral networks.

Don’t Be Afraid To Ask Around

If you know people at work, at a store you frequently shop at, or even over the Internet, you can also ask those people about lawyers in the area that you might want to talk to. That’s a good idea, because you get more suggestions that way – just be sure you know those people well enough to ask the question.

Asking around and getting referrals can be a quick and easy way to find the right lawyer for you. If you aren’t sure whether a recommended lawyer is the one you want to you, you can probably get a free consultation to answer that question.

Getting a lawyer can be stressful, but it doesn’t have to be that difficult. What you need to do is find one that you like and then make sure that you work with them in order to handle your case in the best way possible. Appreciate your lawyer, because they’ll work hard for you.

Your Lawyer Is Working Hard For You

Some people complain about how much lawyers get paid, but they work very hard for their clients. There are a lot of expenses to being a lawyer, and the fees are high because those expenses have to be covered. It’s important to realize that your lawyer does a lot of work on your behalf.

Getting Help Can Be Difficult

It’s not always easy to find a good lawyer. Some of them are only interested in high dollar cases, and others are so busy that you can’t be sure you’re getting enough attention for your particular case. You can find a lawyer you like, though, if you look around a little bit.

Be Sure To Be Honest With Your Lawyer

Telling your lawyer the truth is something that you really need to focus on. If you’re dishonest with your lawyer, he may decide that he doesn’t want to represent you anymore. That’s never a good thing, of course, especially when you really need the representation. You don’t want to waste time hunting for another lawyer.

If you’re honest with your lawyer and appreciate what he’s doing for you, you’ll have a better chance of getting a good outcome for your case. That’s something to carefully consider.

If you’re hiring a lawyer, knowing where and how he was educated may matter to you. While all lawyers have to go through law school and pass the bar exam in the state where they practice, there are still some differences in continuing education and other issues.

Ask Where They Went To School

There’s nothing wrong with asking your lawyer where he or she went to school. Often, the degree will be prominently displayed on the wall in his office. If it’s not, don’t be shy. Ask about schooling and find out where he or she attended, because some schools are better than others.

How Long Ago Did They Graduate?

It’s never a bad idea to find out how long your lawyer has been out of law school. Being out a long time isn’t necessarily a bad thing, but laws can and do change. On the other hand, you might not want someone just out of law school with little experience.

What About Continuing Education?

Ask your lawyer about continuing education, as well. There are requirements that these lawyers have to meet, so they can stay up to date with the latest information. You want to make sure your lawyer is meeting these requirements, and he should be willing to talk with you about it.

If your lawyer has any special education or credentials where your kind of case is concerned, that could be very helpful. Asking about these kinds of things can help you get to know your lawyer better, and that can make you more comfortable in making a decision about legal representation.

Anytime you’re getting a professional to help you with something, you want to get the best one for you. You want someone who knows what he’s doing, and who has a lot of experience helping people like you. With a lawyer, all of those things are very important.

Don’t Judge On Personality Alone

You need to be able to get along with your lawyer so the two of you can communicate about your case, but that doesn’t mean that the lawyer’s personality has to be ‘perfect’ or even similar to your own. Know when to overlook some quirks in favor of experience and education, both of which are very important.

Education Is Relatively Uniform

All lawyers have to go to law school and pass the bar, so they will all seem similar. It’s important to know that you don’t really need to be worried about education for your lawyer. Because there are requirements for uniformity, you’ll be safe with any legitimately licensed lawyer that you choose.

Make Sure Your Lawyer Has Tried Cases Like Yours Before

Experience is the most important thing when it comes to finding a lawyer. You want someone who knows what he is doing, and someone who has experience in handling cases that are similar to yours. Without that experience, your case could suffer.

When you ask the right questions of your lawyer, you’ll feel more confident in your choice of legal counsel and your choice of whether or not to proceed with your specific case. It’s always important to know all your options before you make a choice.

All lawyers are not created equal. They have to pass the bar in the state they practice in, but they can be very different beyond that requirement. To really do justice to your case, you should find a lawyer you’re comfortable with.

Experience Is Important

The experience that your lawyer has matters a lot when it comes to handling your case. If your lawyer has never handled a case like yours before, he might not really be prepared to do what it takes to get you compensation. Be wary of hiring an inexperienced lawyer.

Personality Does Matter

If you don’t get along with your lawyer, you can have a difficult time with your case. Communication is important, and not being able to talk to your lawyer means that sensitive and necessary information could be missed. That’s very detrimental to the case, and something you’d want to avoid.

Don’t Forget About Education

All lawyers must pass the bar exam, but they don’t all involve themselves with the same level of continuing education. Your lawyer’s education is important, so don’t be afraid to ask about it. Any lawyer who wants to work with you should be willing to answer your questions.

Don’t take anything for granted or make assumptions where legalities are concerned. Always find a good lawyer and ask the questions that are important to you. If you do that, you’ll have a better chance at a successful outcome. You may not get everything you want from your case, but you’ll know where you stand and what your options really are.