So what does this mean for you and your lawsuit?  First, your attorney must keep track of the Medicare lien for past expenses and receive Medicare’s approval for your settlement as it has always been done.  Second, to avoid a set-aside requirement, your attorney must obtain a report from a physician or other private consultant giving an opinion that you will not need further care for accident related injuries or the expense will not be significant enough to require a set-aside under the Medicare law.  If you may need significant future care, your attorney will have to pay a consultant to estimate the amount required for the set-aside.  While a set-aside does not need Medicare approval, the defendant’s attorney may seek court approval if the parties cannot agree on the set-aside amount because the Medicare law imposes certain requirements on them, too.  In short, if you are eligible for Medicare, expect your case to take much longer to resolve.

When your case settles, the set-aside money goes to you, but it must go into its own account.  It is considered a “self-administered trust.”  This simply means you are responsible for using it only for accident related medical expenses.  You cannot submit any bills for treatment of accident related injuries to Medicare unless and until the set-aside fund has been exhausted.  You must maintain accurate records for the set-aside fund.  If you use up all the money and submit a bill to Medicare, expect an audit.  If Medicare finds you spent money from the fund for things other than medical needs related to the accident, you may be subject to stiff civil and criminal penalties.  In plain English, don’t mess with your set-aside fund.  Pretend it is not there unless you have a legitimate medical expense. 

The availability of the set-aside fund does not prevent you from submitting bills to Medicare for non-accident related treatment.  If the set-aside fund comes from an auto accident settlement, you can still expect Medicare to pay bills for treatment of a heart condition (unless the heart condition was caused by the accident).

Fortunately, there is no law at the moment that requires an accident victim to create a set-aside fund so private health insurance companies don’t have to pay for the future medical expenses.  But don’t think the insurance companies aren’t pushing for one.

The change in the unemployment law regarding severance pay will also have the unfortunate effect of making it more difficult to resolve employment disputes.  Plaintiffs were willing to accept less cash from employers and employers were willing to include a promise not to contest unemployment eligibility in a settlement agreement knowing that government money was a part of the package providing economic security for the harmed employee.  Now employees will have to get their full pound of flesh from the employer.  The expense to employers for settling will be higher and settlements in employment lawsuits are likely to decrease as a result of the change in unemployment law.

Another important change requires benefit recipients to actively search for new employment and provide an accounting of their efforts to the unemployment office.  A failure to actively search for work may result in a termination of benefits.  Anyone intending to take an extended vacation until their benefits run out will now do so at their own risk.

Other changes include expanded availability of testifying by telephone for appeal hearings and the creation of a “shared work program.”  The shared work program will allow employers to apply to the Department of Labor for approval of a shared work plan.  Under an approved plan, the employer can reduce the hours of all employees in a unit or department instead of laying off some workers.  Each affected employee would then be entitled to receive “shared work benefits” from unemployment compensation for the percentage of their weekly benefit rate equal to the percentage by which their hours have been reduced. 

Did you know Pennsylvania has been unable to pay back loans to the federal government to cover unemployment benefits to its residents?  Because of the irresponsibility of our state government, PA employers will now pay three percent (3%) more in unemployment taxes as a penalty for the State’s failure to make good on the loans.

An employment severance agreement is simply a contract.  The parties are free to negotiate the terms and conditions and enter into a bargain they find mutually acceptable.  Typically, the employee gives up the right to sue the employer for any reason in exchange for compensation which may include money, extended healthcare benefits, retraining, and whatever else the employee’s attorney is skillful enough to wrangle for the client. 

Until a new law known as Act 6 of 2011 takes effect in Pennsylvania on January 1, 2012, it has been perfectly legal for employees to negotiate severance packages in which they reserved the right to apply for unemployment benefits and the employer agreed not to contest.  In these circumstances, the employee often received more money for the duration of the severance period than if the person remained employed.  In Ms. Ackerman’s case, her departure from the Philadelphia School District does not appear to have been strictly voluntary.  One’s acceptance of a severance package in lieu of termination does not turn a firing into a voluntary quit under the unemployment laws.  Accordingly, she may well qualify for the maximum amount of unemployment benefits given her six figure salary.  Having paid unemployment taxes to the State of Pennsylvania during her employment, one can also argue she is simply taking back what she already put in.

Starting in January 2012, someone who becomes unemployed and receives a severance package will now have the severance pay deducted from their unemployment benefits “to the extent the severance pay exceeds forty percent (40%) of the state average annual wage.”  In Ms. Ackerman’s case, it is unlikely she would have been eligible for unemployment benefits under the new law.

As an attorney who has litigated and settled many cases, I believe that an early apology by the defendant and an effort to arrive at a fair resolution with the plaintiff instead of launching into litigation will achieve a quicker, less costly outcome both in dollars paid to the plaintiff and for defense.   But something is taken away from the sincerity of an apology and admission of fault when the doctors know that their words will never see the light of a courtroom and the skill of their defense attorneys can still be used to bludgeon the plaintiff into accepting less rather than risk going to trial in an era when defense verdicts are prevalent and juries are giving doctors the benefit of the doubt.  I see it every month in the reports of verdicts here in Bucks County. 

In my view, an apology should be just that.  A secret is not an apology.  Like fresh air in a stale room, it is needed to heal.

Regular training is critical to eliminating the culture of secrecy.  One wonders how many seminars on sexual harassment/misconduct prevention Penn State’s coaches attended?  All managerial personnel should be trained at least annually on anti-harrassment, anti-discrimination and codes of conduct and informed in no uncertain terms that their jobs are on the line, as well as the perpetrator’s, for failing to report the harmful conduct.  The training should reflect the organization’s commitment to preventing misconduct, and not be treated casually or derisively by managers.  Since there are often few witnesses to incidents of sexual misconduct, the victim or complainant may find themselves pitting their credibility against a highly regarded official or executive with powerful friends.  Only by assuring employees that allegations made in good faith will be taken seriously and investigated by persons without connections to the alleged perpetrator, and further that they will be protected from retaliation, will employees be emboldened to speak up.

In the end, the organization will suffer greatly for the failure of leadership.  The organization can be vicariously liable for its leaders’ personal misconduct, in the case of Penn State perhaps in the tens of millions of dollars.  Any organization, large or small, public, private or non-profit, would do well to heed the severe lessons of Penn State and the Philadelphia Housing Authority and examine their own culture before it is too late.

So what are juries thinking?  If you have been on a jury recently, in any jurisdiction, I’d like to hear from you.

Had the woman and her husband not appeared on Good Morning America and threatened to sue the mall, one wonders how many people would have ever known who it was who fell in the fountain?  Now she looks even more ridiculous than she did coming out of the fountain dripping wet.  I’d like to know what she intends to sue for?  Personal injury?  The tape shows her walking away apparently uninjured. Yet, even if she was injured, the accident was clearly caused by her own carelessness.

Will she sue for an invasion of privacy?  For heaven’s sake, she was in a public shopping mall with video cameras all around!

Perhaps she may sue for the humiliation and embarrassment caused by the posting of the tape on YouTube seen all over the world?  But would any of us have known this woman’s name (which I don’t even remember as I sit here writing) if she had not made an appearance, of her own free will, on a nationally televised morning show?

I suspect some attorney somewhere will attempt to come up with a novel theory if for no other reason than the publicity and notoriety of representing this woman and his own chance to appear on Good Morning America.  But when lawyers agree to be an accessory to foolishness and file a lawsuit under these circumstances, it unfortunately brings the entire profession into disrepute and makes lawyers the butt of a new round of jokes. Just read the comments under the YouTube posting from ABC News for the woman’s appearance on Good Morning America. I hope any lawyer she visits will tell her the best advice he can give her is to watch where she is going.

From an employment law perspective, I’ll bet the mall employee who posted the tape to YouTube did so without the consent of his superiors and will most likely be looking for new employment shortly.



While the insurance company internal appeal process is not complicated, anything you fail to submit during the appeal process cannot be introduced later in a court challenge.  I have seen applicants who have simply written a letter as their appeal restating their belief that they are entitled to benefits.  When the appeal is denied, the opportunity to produce additional medical records and letters of support from treating physicians is lost.  An attorney can help you see what you or the insurance company may have missed and advise you of your likelihood of success. 

Employer provided disability benefits are governed by a law called the Employee Retirement Income Security Act, or ERISA for short.  The law favors the insurance companies and challenging a denial of benefits is a difficult undertaking.  To prevail, all the insurance company needs to show is that it had a “reasonable basis” for denying the claim.  Often, this standard can be met by having the applicant’s file reviewed by an “independent” physician who renders an opinion that the applicant is capable of working.  The applicant has the burden of showing the insurance company’s decision was arbitrary.  Mounting a successful challenge requires a careful legal review of the insurance company’s entire claims file and the disability policy.

You are entitled to a copy of the disability policy and your insurance company’s file regarding your claim at any time.  You must send the insurance company a written request.  If they fail to send you the documents within thirty days, the insurance company can be fined $110/day.  Every evaluation of a claims denial must begin with a request for the file. 

An applicant has 180 days after the denial to submit any additional materials for the insurance company’s consideration.  The insurance company may take up to 90 days to make a decision.

Your effort to reach a reasonable accommodation with your employer should strengthen your long term disability (LTD) application and should be noted in the application.  Although not required, it does not hurt to mention any efforts you made at reasonable accommodation in an application for either social security or long term disability benefits.  To be entitled to protection under the ADA, a disabled person must be able to work either with or without an accommodation.  Therefore, if your employer’s failure to accommodate is an issue, it is important to avoid making factual statements in disability applications that may be construed as demonstrating an inability to work at all.

Before the Supreme Court case of Cleveland v. Policy Management Systems Corp., general statements like “I cannot work any longer” or “I am completely disabled” in a disability application were used to bar a disabled person from suing a former employer for failing to accommodate him under the ADA.  Since Cleveland, generalized statements no longer preclude a disabled person from filing a lawsuit under the ADA.  However, specific statements of fact still may.   Rest assured the insurance company attorneys and the courts will scour benefits applications looking for factual statements which may contradict a disabled person’s claim that he could have continued working with a reasonable accommodation.  For example, a nurse who states in a disability application that he cannot stand for more than five minutes nor lift more than five pounds may have his ADA case dismissed because standing for long periods and lifting more than five pounds are typically essential functions of a nursing job.  Careful review of a disability application to demonstrate the steps taken to maintain employment and avoid inconsistent factual statements will not only increase the likelihood of receiving benefits, it will deny the employer’s attorney a key argument often raised to dismiss an employee’s ADA claim.

It is not only what you write, but what your doctor writes as well that should be reviewed.  Disability benefits applications generally include physicians’ certifications that must be completed by the applicant’s physician.  While “check the box” responses may not be given preclusive effect by some courts, the doctor’s specific factual statements as to what the applicant can or cannot do bind the applicant as well if submitted without any clarification or disagreement from the applicant. 

During the application process, it is important to produce all relevant medical records and have at least one physician, preferably the specialist treating the disabling condition (e.g. a rheumatologist for rheumatoid arthritis), write a letter stating specifically how the disabling condition prevents you from performing your job.  For example, the rheumatologist might write for our nurse that the arthritis prevented him from opening bottles or entering data into a computer.  This would not preclude him from later bringing an ADA claim against the employer if the employer refused his requests for voice recognition software for the computer (now readily available and affordable for most employers) or bottles that came with something other than screw-off lids for dispensing medicine.

I do not handle claims to the Social Security Administration for social security disability benefits.  Before applying for these benefits, consult an attorney who specializes in social security claims.  However, disability insurance companies will often require you to apply for social security benefits which, if granted, will reduce the amount they have to pay you.  The insurance companies may even recommend and pay for an attorney to pursue your social security benefits. 

While you may provide additional documentation to the insurance company on an internal appeal, it is much more cost effective to marshal all your evidence and provide it with your application.  Taking a little more time to properly prepare and submit the application the first time will significantly increase the chances of having your application approved, avoiding the additional time and expense of an appeal, and avoiding problems with a later claim against your employer for a failure to accommodate.

In the final blog for this series, I will discuss what to do if your disability application is denied.

My last stage role outside the courtroom was back in 1991 when I played one of the muleteers in “Man of La Mancha” at Princeton’s McCarter Theater.  After 19 years, I finally decided it was time to stop making excuses as to why I did not have the time for community theater and to audition again.  My daughter’s love of drama also motivated me and reawakened an old yearning for the spotlight.  I auditioned and will be playing the role of Marley’s ghost in the Newtown Arts Company’s musical production of “A Christmas Carol.”  The show runs from December 2nd through the 8th at the historic Newtown Theater on State Street in Newtown, PA. www.newtownartscompany.com.

Aside from the opportunity to take part in a timeless story, the role of Marley’s ghost reminds me we all have a  larger role than our individual occupations.  Business?  Would that Mankind had been my business!  Charity, mercy, benevolence and forbearance were all my business!