Employer violated FMLA by not freezing its point reduction policy during approved FMLA leave:
Dyer v. Ventra Sandusky LLC, 934 F. 3d 472 (6th Cir.)
Employer had a no fault attendance policy in which points were assessed for absences. Once 11 or more points accumulated, the employer was terminated. The employer also had a policy where employees could reduce the number of points. For each 30 day period of perfect attendance, one point would be reduced. Vacations, bereavement, jury duty, military duty, union leave and holidays counted toward the 30 days, and the employee would not be penalized for taking those types of excused absences to accrue the 30 days resulting in a point reduction.
Employee Dyer had migraines and took approved intermittent FMLA leave. Each day he was off for approved FMLA, the 30 day period was reset to zero. He eventually accumulated 12 points under the no fault attendance policy and was terminated. He brought suit in Federal Court alleging violation of FMLA. The Sixth Circuit Court of Appeals held that the employer’s attendance point reduction schedule violated the FMLA because it interfered with Dyer’s right to take FMLA leave ad be restored to an equivalent position, even though the taking of the FMLA did not in itself count toward the 11 point limit. The taking of the FMLA should have “frozen” the accrual of perfect attendance during the leave, as the other types of specified leave, ie vacation, bereavement, jury duty, military duty, union leave and holidays.
TPA Liability
Self-insured employers rely on third party administrators to manage their workers’ compensation claims, however when TPA mistakes are made who is liable? Mistakes which are violations of the self-insured rules, i.e. untimely payment of compensation, result in a Self-Insured employer being penalized with a self-insured complaint. Multiple self-insured complaints put the very privilege of self-insurance at risk. While some mistakes result in self-insured complaints, there are some mistakes such as the unauthorized certification of a claim, the authorization of treatment for non-allowed conditions which directly result in the increase of a self-insured employer’s claim costs.
TPAs are professional organizations, and can be held to a standard of care. TPAs carry errors and omissions insurance coverage, in the same way as other professionals, such as insurance agents, architects, engineers, doctors, lawyers, and dentists. Although TPA standard of care is very fact dependent, it requires a TPA to exercise the skill and knowledge normally possessed by members of the profession in good standing in similar communities.
When a TPA actions fall below the standard of care, it may seem like the only result is that employer pays, with no accountability for a mistake by the TPA. However, a covered occurrence may have been triggered under the TPA errors and omissions policy. A professional malpractice claim is like any other negligence claim in that it requires proof of a breach of standard of care resulting in damages.
If you believe that you are paying for claim costs due to TPA negligence, please call us for a free consultation.
LL Patterson LLC sponsors and volunteers at Community Meal at One Bistro 12/11/19
Lisa Patterson and her staff spread some Christmas spirit by volunteering at the Community Meal at One Bistro in Xenia on December 11, 2019, serving over 85 meals.
Lisa Patterson sponsored the Community Meal, and supports One Bistro’s mission to “provide a place where our neighbors eat and come together as one community.”
Check out the photos of great volunteers working and making our community a better place!
ARE SUBROGATED EMPLOYERS LIMITED BY THE AMOUNT CLAIMANT RECOUPS IN A PERSONAL INJURY CASE? NO.
Self- insured employers have subrogation rights by statute, applicable when an employee is injured by a negligent third party, and the employer incurs claim costs. In most cases, a statutory formula is used to calculate the amount a subrogated employer may recover in an agreed settlement of the injured worker’s personal injury case, and the recoverable amount is a ratio of the entire settlement taking into consideration the injured worker’s attorney fees and expenses, regardless of how much the employer has actually paid or will pay in the future. The statutory formula provides an incentive for the parties to settle and divides the money in an equitable fashion.
Recently, however, LL Patterson encountered a case where this did NOT happen, and we were able to recover for the employer an amount that exceeded the statutory formula calculation. One of the reasons we were able to obtain such an unusual and favorable result is because the injured worker and the third party tortfeasor aligned themselves and attempted to settle the tort case without the consent of the subrogated employer. The Ohio statute that governs workers’ compensation subrogation, R.C. 4123.931, actually addresses this situation and gives subrogated employers the right to recover EVERYTHING paid in the claim PLUS the estimated future claim costs against BOTH the injured worker AND the negligent third party. This “joint and several liability” provision of 4123.931 is a very powerful tool in the employer’s favor. It is also a fact pattern that we do not see play out very often for the reason that, it is not in the best interests of the injured worker or the third party to attempt to settle without the consent of the subrogated employer, as it opens them up to more liability than they would otherwise have under 4123.931.
The TPA, Defense Counsel, and you (The Client)?
I recently received this email from a Third Party Administrator. It is clear that this Claims Supervisor believes that it is her right to interfere with the legal relationship between attorney and a self-insured employer, but it raises the question- what should be the central objective for each of the professionals on your team? And more importantly what is your goal when utilizing defense counsel. Do you hire defense counsel to take hearings? Do you hire defense counsel to develop both a factual and medical defense? Do you want decisions made on your behalf in litigation by non-attorneys?
The impetus of this email is a growing trend in which litigation is being controlled by non-attorneys to further the economic objectives of the huge conglomerate Third Party Administrators and more specifically, blatant engagement in the unauthorized practice of law. Litigated claims are being directed not by the client through advice of counsel, but by non-attorney claims adjusters.
With that being said, in the 25 years I have practiced in this area, I have encountered amazing, dedicated Third Party adjusters. These experienced and seasoned professionals work hand in hand with defense counsel to provide for their client the best defense in Ohio Workers’ compensation claims. This teamwork is the stuff of 20+ years of successful representation of employers in Ohio with the main objective to 1) have the claim denied; 2) have the claim closed; 2) have the claim settled. These should be the only objectives of a workers’ compensation program. Not every case requires litigation, but when it does a client is best served if the Attorney can provide legal advice to the client to achieve those objectives.
It bears repeating, the Client has the authority to accept recommendations made by an attorney for legal defense. Defense counsel’s duties require them to communicate with, advise, counsel and advocate for our clients, the self-insured employers.
What you don’t see in this email:
- A discussion of what would be best for the claim.
- A discussion of what would be best for the client.
- What expert physician/surveillance company would be best for this individual claim.
- An acknowledgement that this self- insured employer has had 3 different claims examiners in 3 months, and this claims examiner had no familiarity with this case.
What you see in this email:
- Defense counsel is being asked not to speak directly to the self-insured employer.
- Claims adjusters, to the exclusion of self-insured employers, will make all decisions in the claim file.
- All vendors should be in the umbrella of companies provided by the TPA.
- A conflict between a counsel’s legal duties to the self-insured Employer and the TPA’s dedication to furthering their own interests.
Third party administrators are great at managing claims. Lawyers are great at conducting litigation. Isn’t it time the client takes control? How do you want your claims handled?