Keefe, Campbell & Associates, LLC

Editor’s comment: Two Illinois healthcare givers, Dr. Salomon and Chiro Minnis, the latter of which owns Spine and Joint Rehabilitation Center in Maywood, IL, have been indicted on federal health care fraud charges. Each count carries a maximum of 10 years in prison and a $250,000.00 fine. The indictment was announced in March 2010 by Patrick J. Fitzgerald, U.S. Attorney. We note a brief Westlaw search under Illinois Workers’ Compensation Cases and Administrative Decisions produced numerous “hits” for both Dr. Minnis and Dr. Salomon.

In Unites States v. Darwin Minnis, Jacob Salomon, and Gary Strauss, 10 CR 0193, Unites States District Court, Northern District of Illinois, Eastern Division, the federal government accuses Dr. Minnis, Dr. Salomon, and “biller” Gary Strauss of submitting false claims which total more than one million dollars. The false claims were submitted to obtain payments from workers’ compensation and other insurance companies for services which were either not provided or for inflated claims for provided services. The alleged scheme took place from 2000 through 2007.

According to the 18 count indictment, Dr. Minnis forged the signatures of other physicians on documents which falsely represented treatment had been ordered or supervised. The indictment alleges Dr. Minnis committed these forgeries as he knew the federal workers’ compensation program would not accept a chiropractor’s opinions or reports as medical evidence to support workers’ compensation claims. Further, Dr. Minnis is accused of double-billing workers’ compensation providers for disability examinations.

In addition, the indictment alleges Dr. Salomon signed false documents which made it appear he or other physicians had treated certain patients when no treatment had been provided. Dr. Salomon and Dr. Minnis then prepared false progress notes and fee sheets.

This claim has been assigned to Honorable John F. Grady. This article was researched and written by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: In Cramer v Viacom Outdoor 2009 WL 3807341 (Ill.Indus.Com’n), Commission Panel B upheld denial of benefits determined by the Arbitrator based upon an injury which occurred at an employer sponsored charity bowling event. The pertinent facts noted the event occurred during the afternoon hours of what was otherwise a normal business day. The employees including Petitioner worked the earlier part of that day in the office up until 1:30 PM when they departed for the event at a local bowling alley. The employees were paid regular wages for the time they attended the event and if they didn’t attend, the office manager testified they would have been paid regular wages but would have been required to attend to regular office duties.

While bowling, Petitioner sustained a comminuted fracture of the articular surface of left distal radius and a comminuted fracture of the left humeral neck along with a tear of the left supraspinatus. She underwent an open reduction with internal fixation of hardware to repair the radius fractures. As a result she has lost significant range of motion in both the wrist and shoulder joints.

Even though Petitioner testified she felt “pressured” to attend the event the claim was denied. We note she did not testify that she was ordered or assigned to attend the event, as the statute would require for injuries to be compensable. The employer’s witness who was their Human Resources manager testified employees were not ordered or assigned to attend the event. While language in notice of event strongly encouraged everyone to participate, it provided employees not wishing to participate will be required to work their normal day. Employees were asked to advise whether or not they would be participating. Each participant was required to make a minimum $15.00 donation. However, the company promised to pay for the bowling and shoe rental.

The basis for the denial is the exclusionary language found in Section 11 of the Act. The relevant portion of Section 11 reads as follows: “Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.”

Another key fact was an attendance record showing ten of the 36 employee staff (27%) did not sign up to attend the event, although they did make a donation and there was no evidence presented that any of the employees who did not attend the event were disciplined or discriminated against in any way by the company.

This case is a good example of an Arbitrator who heard all of the evidence and determined all appeared to be credible, but noted the language of the Act and the overwhelming facts in the matter did not support compensability under the Illinois WC Act. Respondents can also take away the lesson that good investigation and presentation of evidence still is an effective method of defending claims with actual defenses.

If you are planning a recreational outing for your workers now or in the future, we have a release form you can use to insure accidents occurring during the event are not compensable. If you would like a copy of the form, send a reply. This article was suggested by a knowledgeable reader and we thank her for the tip. It was then researched and written by Shawn R. Biery, JD. Please forward any comments or requests to sbiery@keefe-law.com.

Editor’s comment: We note with chagrin the plethora of articles now on the web outlining growing concerns with head and brain injuries in American professional football. This sport of humans clashing heads together at high impact is now subject to a growing wave of workers’ compensation claims for dementia, lack of coordination, loss of mind and memory. Recent studies have shown numerous football players have suffered head injuries as a result of multiple concussions with resulting clear signs of chronic traumatic encephalitis or CTE. It has been alleged chronic traumatic encephalitis results in early dementia, onset of Alzheimer’s disease and numerous other demonstrable brain disorders. Studies indicate the average high school, college and professional football player sustains over 1,000 measurable concussions in every game. Please note in Illinois, a claimant does not have to typically demonstrate a single injury—sadly, this state is generally to wildly liberal about “repetitive trauma” that is defined by a modern football game and/or practice.

Recently prominent workers’ compensation claims have been filed by several former professional players against the National Football League in California. We assume many other players are considering signing up for the largesse. Every single former player and their counsel point out how awful it is that football teams are so valuable and prosperous while day-to-day players are supposedly left out in the cold with little or no compensation. Every claimant appears to be demanding monster settlements for lifetime medical coverage for any head or brain malady almost as a constitutional entitlement. Observers note this mind-set and statutory scheme makes California a fertile and prosperous jurisdiction for football-based workers compensation claims. Several other states, such as Illinois and New Jersey may be right behind the “Left Coast” in fostering similar brain injury claims. And once professionals start raking in cash, how long will it take for high school and college players to start filing negligence claims against their former schools?

The problem we see with all of it is football is already a very expensive game and is something of an orthopedic surgeon’s fantasy. Modern football players are constantly under treatment and may be disabled as much as or more than they are healthy—most professional football teams have rosters of about 50 players but actually need 100 or more players to get through a complete season. The medical bills for an average NFL or Arena football season have to be well into the tens of millions already. If you add to that cost provision for lifetime medical coverage for every brain dysfunction any football player ever suffers, you are almost certainly going to bankrupt what is our current national past-time.

Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: As a follow-up to last week’s article on “repackaged” prescription drugs, we were asked by a reader to direct all of you to this answer on the Illinois web site regarding how to best pay for drugs under the Illinois workers’ compensation system. The reader found it in the Frequently Asked Questions section on our Illinois Workers’ Compensation Commission’s informative website.

Moments earlier, the reader received a letter purportedly from a pharmacy biller’s “counsel” stating they had been in touch with someone at the Illinois Work Compensation Commission who claimed they were told by an unnamed official what to do in processing pharmaceutical bills. The letter claimed their “counsel” had been told the repackaged drugs for which they were billing astronomical rates should and must be paid for at 76%.

If you are not aware of this new phenomenon, the relatively new concept of “repackaged” drugs occurs when medical providers buy wholesale prescriptions for what you can get them for at a typical pharmacy and then “re-price” them at an exorbitant markup. The provider would then simply add the much higher drug cost to overall medical billing and hope the medical bill payer would simply approve or discount marginally, creating an enormous profit.

The problem with that approach is it is in direct opposition to what the Commission’s web site says! The Commission website provides:

How should pharmacy drugs be paid?

The fee schedule does not apply to pharmacy prescriptions. Prescriptions should be paid at the usual and customary rate. The law and rules make no mention of what the usual and customary rate is. No formula was adopted. If there is a dispute, the parties would take the issue before an arbitrator.

Our reader advised there are some general HCPCS codes on the fee schedule (e.g., J3490: unclassified drug) that show a fee or POC76 (i.e., pay 76% of charge). Some providers try to use these codes for prescription bills and claim payment should be at that fee or at 76% of charge. Our reader asserts this view is incorrect and should be rejected. We agree that drug vendors should not improperly implement HCPCS codes to side-step the fact Illinois does not have a WC pharmacy fee schedule.

We have forwarded the letter and the concerns we have about “repackaged drugs” to our Illinois Attorney General’s office for their consideration. We assure everyone of our view the practice is simply and patently gouging when it comes to a fair price for prescription medications for Illinois employers and injured workers.

We thank our reader for her thoughts and recommendations. We would love to forward any response you might have.

Editor’s comment: It is getting to be time to put up or shut up, Illinois business. The former Governor-out-on-bond goes to trial on June 3, 2010, not even six weeks from now. Illinois voters are sure to see one of the tawdriest trials of all federal criminal trials of a public official in Illinois history. And the trials and tribulations of this former deal-maker may continue right up to the November statewide election. In our experience, most times when lots of voters see a leading public official go down, they are likely to vote for reform from the other side of the political matrix.

Even without the gauntlet facing our prior Gov, Republican State Senator Bill Brady now leads current Governor Pat Quinn 45% to 38% in Illinois’ ongoing gubernatorial contest. The race has tightened slightly since last month, when Brady was 10 points ahead. Polls indicate forty-three percent (43%) of Illinois voters approve of Quinn’s performance as governor, while 56% disapprove. It appears Brady’s job has to be getting his visage in front of the voters as a decent and honest alternative to the shady politics of the prior administration that brought our workers’ compensation system to where it is now.

Everyone with a brain is starting to note the unpaid Illinois state bills are piling high with about $5.5 billion in unpaid bills out there and waiting for someone to find the money to get even reasonably current. All indications are the bills won’t be paid until there is a peak of more than $6 billion outstanding. The party in power has pulled in the mat in on a long-range solution, fearing a tax increase will insure a victory by their opposition. There won’t be any real cost-cutting because they aren’t going to cut their own friends and colleagues from jobs and state contracts.

Instead, Illinois could face a delay of months in billions in payments to public school districts, the curtailment of food deliveries to prisons and mental institutions and the inability of state police vehicles to fill their tanks using gasoline cards. They also face closure of nursing homes, day care centers and other facilities that have run out of cash to pay staff or their own vendors. Local governments, universities and community colleges will face a tough time meeting payroll because of the state’s failure to pay cost reimbursements. All of it will be disenchanting to taxpayers and voters.

So What Would Bill Brady Do? State Senator Bill Brady may be a refreshing change from the politicos in Springfield but we have no idea what his overall approach to workers’ comp might be other than to “reform” it. From our perspective, he doesn’t know what you as a veteran in the trenches may know and can’t be expected to understand the nuances of this nutty and complex benefit system. We are asking all of our readers in the defense industry to start taking a cold hard look at what you think might be the best path for him to take. We suggest our plea might paraphrase the old saying: grant us the serenity to accept the things we cannot change; the courage to change the things we can; and the wisdom to know the difference. If we can change things for the better, let’s get to it folks.

What can and should we change about Illinois workers’ compensation? What are the worst and most anti-business aspects of our current system? Is there anything we can offer the other side to get them to cooperate even a little and make this all happen?

We also want our readers to remember another critically important thought—Money talks and the rest walks. Please understand Illinois business has to try to start raising money and put it into the proper places to get WC reform to happen. For gosh sakes, someone sponsor a golf outing to raise money for a WC Law PAC for business as the labor side of the industry has been doing forever!

For their part, we assure all of you the labor side of Illinois workers’ compensation is going to do everything they can to keep the major legislative gains they sold to all of us in 2005. Whatever we do to change things, they are going to fight and kick and scratch to get and keep their legislation and rules along with hearing officers, Commissioners, judges and justices who are focused in their image and likeness. If we want to change it for the better, we have to start to think about raising money along with what to focus on and where to put the money.

Please understand the major players in 2005 on the defense side were the:

Illinois State Chamber of Commerce;
Illinois Manufacturers Association;
Illinois Hospital Association;
Illinois Retail Merchants.

Those players remain in place—we are simply not seeing a clearly defined WC reform plan from any of them right now. We hope and pray the Illinois State Chamber announces their WC reform recommendations earlier rather than later. We don’t see any association currently calling on Senator Brady to do anything of particular note in WC reform. Most important, we don’t see any of them openly raising money with a goal of insuring your interests are out front in the coming political battles.

We were recently asked about the Illinois Self-Insurer’s Association and their “role” in workers’ comp reform in this state. We point out that association was started in 1978 by the same WC defense firm that runs it today. In over three decades of existence, the next important legislative reform initiative we see from the ISIA will be their first in 32 years. In all this time, we haven’t seen the Self-Insurer’s Association actually doing anything of importance for Illinois’ self-insured companies other than quietly reporting how bad things have gotten while marketing the defense firm that raises dues to operate the organization.

If we are wrong about it, please send a reply and we will be thrilled to correct these statements. We call on the ISIA to be part of the solution–start raising money; create and use their bully pulpit to promulgate a policy for workers’ comp reform in Illinois. If they do so, we will stridently support their efforts on all fronts. However, if major Illinois employers don’t see the ISIA raise money, combined with a plan and actual movement to outline where this state should reform the Commission and legislation, we suggest moving your interests, efforts and most important, money behind any statewide organization that will truly and fearlessly carry your sword.

The election is about six-seven months from now folks. We appreciate your thoughts and comments. Please simply reply or post them on our award-winning blog.

Editor’s comment: Last month the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) was introduced in the U.S. Congress as proposed legislation. It contains some significant changes from the current law, the Medicare Secondary Payer Statute (MSP). Many observers on both sides feel the current Medicare Secondary Payer (MSP) system is inefficient and creates problems for Medicare beneficiaries, the Centers for Medicare and Medicaid Services (CMS), and anyone who settles a claim involving Medicare liability. Proponents of the new law feel the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) will improve the system to speed the return of funds to the Medicare Trust Fund and promote settlements.

The MSP system was appropriately intended to ensure Medicare and U.S. taxpayers do not pay for health services when another party has primary responsibility – either as a group health plan, workers compensation plan, or other party with liability for the care provided. Unfortunately, current inefficiencies and problems in the system make it nearly impossible for many parties to determine how much is owed to Medicare. If an entity with MSP responsibility disagrees with Medicare’s after-the-fact calculation, it does not even have a process for appealing their decision, regardless of how inappropriate or flighty it might seem.

The MSPEA departs from the current law in several significant ways. First, MSPEA proposes a “final demand” may be obtained prior to any relevant settlement, judgment, award or other payment. The current law only allows a “final demand” to be made after settlement, judgment, award or any final payment.

Additionally, the new law provides if CMS fails to respond in a timely manner, it may absolve the claimant from any liability and obligation to pay. The change is proposed to help shorten the current process and provide more accurate estimates for all parties.

Alternatively, MSPEA also would allow for a “good faith” estimate based upon billing data of the conditional payment amount to be tendered directly to CMS. In response, CMS would be able to challenge the estimate.

The MSPEA proposes an “extended” right of appeal to “the applicable plan involved, or an attorney, agent or third party administrator on behalf of such applicable plan”. MSPEA also proposes a change of wording under Section 111 which currently reads, “shall be subject to a civil money penalty of $1,000 for each day of non-compliance” to “may be subject to a civil monetary penalty of up to $1,000”.

MSPEA proposes exempting claims under $5,000, imposing a 3 year statute of limitations on the U.S. government and discontinues the use of social security and health identification numbers for reporting with CMS.

Keep your eyes on this spot for progress on passage and implementation of the new law. This article was drafted by our intrepid paralegal-soon-to-be-lawyer Nicole R. Zachary and we thank her for her research and hard work. We appreciate your thoughts and comments on all of it.

Editor’s comment: One of our national clients advised of a recent trend—drug compounding and repackaging to make the simple pharmaceutical process much more expensive. In follow-up to our first article, we note in recent years, compound drugs and drug repackaging have gone hand-in-glove as ways in which WC claims handlers often have no idea what they are paying in handling Illinois workers’ compensation claims. As we have advised on numerous occasions, it is amazing Illinois has a medical fee schedule without a prescription fee schedule. This change won’t happen until Illinois business demands it.

Compounded drugs are hand-made rather than mass-produced, and supposedly tailored to the needs of individual patients. These practices are mainly regulated by the states instead of the federal Food and Drug Administration. The disparities resulting from 50 sets of rules and levels of technical and inspection prowess shouldn’t be allowed to continue. Repackaged drugs are prescription or over-the-counter drugs taken from initial drug producers and repackaged and repriced, usually by physician/clinic dispensers. The cost is from two times higher to twelve times higher. In one study, repackaged drugs accounted for less than a third of all prescriptions but over half of all dollars paid. The concept is especially troubling when one considers the overwhelming majority of the top 20 drugs are generic.

As has been the case for the last several years, the average prescription cost of “compound drugs” is well over the national average. A growing percentage of the providers dispensing compound drugs submit via paper, and many payers have had limited capabilities with adjudicating these bills at the appropriate or allowable rates. While the number of the compound drug paper bills is currently a small percentage of most national payers’ overall prescription volume, the dollars associated with these transactions and the potential savings can be high.

With many states’ workers’ compensation laws, the rules vary regarding how a payer can adjudicate prescription charges. For example, California’s billing regulations require the providers (pharmacies, compound drug companies, physicians, etc.) to submit a detailed list of the individual ingredients in each compound prescription. In addition to significantly overpaying, payers encounter other drug treatment and billing-related shortcomings and challenges when managing compound drugs.

Some of the issues include:

Double billing–compound drugs are not required to have nor do they use standard national drug code (NDC) numbers, and therefore it is difficult to identify when multiple fills for the same prescription are being provided. In addition, some times the compound pharmacy companies also use different third-party biller names, further complicating a payer’s ability to identify this type of situation.

Drug interactions–since individual ingredients of the compound drug are not captured as part of the prescription transaction within the claimant/patient profile, there is a high risk for potential drug interactions (adverse effects) or overdoses when other drugs in a patient’s overall drug regimen are being combined with these compound prescriptions. In addition, the lack of NDC-level detail does not allow for drug utilization edits to occur on these transactions. The only way to solve this issue is to record and adjudicate each individual ingredient within the same pharmacy management system, using the same patient profile and applying the same clinical review edits and rules.

Overbilling–occasionally compound drugs will include the use of higher priced brand name drug ingredients regardless of whether there is a generic alternative available. The lack of NDC detail within a pharmacy management system will not identify these types of issues. There is also a frequency of overbilling compared to the allowable compound production time billing rate.

Therapeutic duplication with different dosage forms–dispensing the same drug in oral and topical form and avoiding the appropriate drug utilization edits since they aren’t using standard NDC numbers.

On the closely related repackaging issue, it is difficult for WC payers to receive accurate prices for repackaged medications, which, by definition, mean a pharmaceutical product is removed from the original container with an original NDC and put into a new container with new quantities, therefore requiring a new NDC, with a new repackaging company label and price for the medication. By its nature, the process can result in inaccurate and overpriced medications. Some states other than Illinois have been attempting to help payers manage the process better, after they have begun to understand the cost-control issues.

We hope to see such prescription and over-the-counter drug abuses end and urge our administrators to get involved to help Illinois business counterattack abuse. We appreciate your thoughts and comments.

Editor’s comment: Everyone in the claims industry knows who they are but what can we do about them? Please understand we cannot name names in an article such as this—to do so would result in an immediate and expensive libel action from each and every doctor and clinic we named. When you run an ongoing medical scam, you are generally very sensitive about “defending your good name” and most of these joints and scamming physicians/chiropractors in Illinois are ready, willing and able to sue at a moment’s notice.

Our favorite story about medical provider abuse came from a Petitioner’s attorney who told us of a clinic in the central part of Chicago—they were sending a bus out to pick up a patient in a distant suburb and bringing him to town for care. The clinic was billing over (or overbilling) $5,000 per long-distance visit. How do we stop this sort of shenanigans?

What as a start–what defines Unstoppable Medical Fraud Machines? Well, every doctor and healthcare giver across the state knows who they are. Some day, we look forward to actually having a doctor on the IWCC advisory boards who will take steps to identify and stop the abuse. Every veteran Illinois WC claims manager rolls their eyes to hear the names of any of the Unstoppable Medical Fraud providers. When a newbie WC claims handler who is unfamiliar with our strange ways in this state sees a bill from one of them, bingo—you note

Most times chiropractors are involved at the beginning or middle of the process;
Lots of times, claimant lawyers are “secretly” involved in referrals
The treatment is never-ending;
These providers’ medium bills are about five-ten-fifty times higher than reputable providers;
The clinics and doctors are relatively immune to utilization review and IME’s;
All of it looks like fraud.

Why are chiropractors involved? From our perspective, the role of chiropractors in this form of medical care is in the larger personal injury setting, prone to overtreatment and overbilling. If you find a chiro that doesn’t do so, save their name and number and send them business. We feel chiropractors have a bona fide role in medical care but, in our view, is should not be an endless one. It is a rare chiropractor we see in the Illinois WC process who believes in a beginning, middle and end to what they provide. And sadly, lots of chiropractors seem prone to medical abuse when they are taking advantage of the strange situation in which they are fronting the cost of care to then try to scam or wedge out payment from a carrier and not the patient.

Why are lawyers involved in too-much-treatment and clear instances of medical fraud? Well, Plaintiff lawyers started doing so on the general liability side to increase what are called “special damages.” Then they seem to miss the fact it usually doesn’t help to have overtreatment on the much more structured WC side—claimants don’t get more money for a soft-tissue strain when there are $50K in medical bills; it creates a headache no one wants.

The problem is many of the overtreating doctors look for Plaintiff lawyers to trade clients—you send me folks who will overtreat and I will send you clients. In the wildly competitive world of Plaintiff personal injury work, it is hard to turn down new business for newbie lawyers, regardless of the problems present. The old-timer lawyers know the math and don’t want to represent clients of overtreaters but the process had been going on for years and won’t stop any time soon.

How do we stop Unstoppable Medical Fraud Machines from the perspective of defense WC claims handlers? Well, officially you can use utilization review and independent medical exams and our clunky medical fee schedule to counterattack. All of those techniques have strengths and weaknesses. We assure all of you the current Illinois WC Commission does generally cut the medical bills of overbillers and kudos to them for doing so. The problems our clients note is you have to then fight and litigate to win and stop the abuses.

We were asked by a client whether you can pay-off a claimant to get them away from an overtreater/overbiller? The answer is there is nothing in the Act or Rules that prohibits it and whatever isn’t illegal is therefore legal. This is a new one for us and we would love to hear your thoughts and comments on it.

Our vote is to get administrators and WC advisory boards that have brains, guts, talent and care about business in Illinois—we hope to some day see someone consider implementing a blacklist for overtreaters and overbillers to stop clear and obvious instances of repeated medical abuse. Until we start to get serious about identifying and stopping overbillers and medical fee abuse, it will not stop and it is a major pain at every level of WC claims handling. Please let us know your thoughts or post them on our award-winning blog.

Editor’s Comment: Last week, we wrote about taking out the injured worker in the WC medical bill paying environment. We received the thought from a reader—we considered it a brilliant and simple idea. He indicated one of the biggest problems with Illinois WC claims is with the billing from medical providers. We pointed out in most states, the medical provider is required by law to directly bill the insurance company/TPA and not send the bills to the injured worker or the employer. The medical provider is also required to send the medical records with any and all bills. Failure to do so means their bill won’t be repriced/paid until the records are received by the insurance company/TPA. The reader noted many of insureds hold onto bills, fail to get them coded or bills get lost and/or misplaced with personnel changes.

Well, duh, guess what—the Illinois Act requires it!!! Please note:

Section 8.2 (d)

When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment and providers shall submit bills and records in accordance with the provisions of this Section. All payments to providers for treatment provided pursuant to this Act shall be made within 60 days of receipt of the bills as long as the claim contains substantially all the required data elements necessary to adjudicate the bills.

If you didn’t know about this, please start to use it. We urge all of you great folks in claims to start telling/writing/demanding all Illinois doctors, hospitals and other healthcare givers follow the law and send the bills only to you or your insurance carrier/TPA. Take the injured worker out of the WC claims system. Avoid disputes and unnecessary litigation involving your injured workers with accepted claims when medical bills need to be coded or medical documentation is needed—the injured worker couldn’t get it for you if they tried; your communication should be to the healthcare giver.

If you need further clarification on this one, please send a reply.

Editor’s Comment: In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (April 2, 2010) the Federal Appellate Court ruled the District Court did not err in granting Defendant-employer’s motion for summary judgment in an FMLA action alleging the Employer wrongfully terminated Plaintiff under its no-fault attendance policy when it counted two absences under said policy that were actually covered under FMLA.

The Court noted Plaintiff failed to preliminarily establish she worked required 1,250 hours of service during previous 12-month period of time so as to qualify for protection under FMLA. The Federal Court also rejected Plaintiff’s argument she was entitled to toll the 12-month period by 56 days when on leave during said period. We feel the purpose of the statutory FMLA requirement of 1,250 hours in 12-months is to avoid precisely what Plaintiff was trying to do.

The Court further rejected Plaintiff’s claim her employer retaliated against her by failing to remove an absentee point after expiration of the 12-month period as set forth in absenteeism policy, since any benefit to Plaintiff occasioned by removal of absenteeism point would have occurred after FMLA leave had commenced, and thus was not covered under retaliation provisions of FMLA.

We strongly agree with the ruling. If you have concerns about an FMLA issue or how to best address defense of such claims, send a reply.