Thursday, December 16, 2010

Gloucester Twp pays $13,500 to settle employee's retaliation suit

On February 26, 2009, the Township of Gloucester (Camden County), Scibal Associates (the Township's provider of insurance and claims adjustment services) and Jose Eduardo Diaz-Jiminez, M.D. agreed to pay a total of $13,500 to a Gloucester Township employee who claimed that Township officials, Scibal Associates and Dr. Diaz-Jiminez conspired "to create a pretext that [the employee] was engaged in fraudulent conduct."

In his suit, David Pomianek, Department of Public Works employee, said that he was injured on the job on August 23, 2005. Since his injury was covered by workers compensation, Scibal and Associates required Pomianek to receive treatment by Dr. Diaz-Jiminez who was employed by Express Urgent Care & Occupational Health Services.

According to the suit, Scibal placed Pomianek under surveillance to to see if he "was performing activities within the limits prescribed by Dr. Diaz-Jiminez." Pomianek alleges that Diaz-Jiminez "falsely resubmitted . . . documents changing the limitations . . . to create a pretext that [Pomianek] was engaged in fraudulent conduct." He claims that Dr. Diaz-Jiminez "interrogated" him at a subsequent office visit "seeking to illicit [sic] information that could be used against [Pomianek] and to establish that [Pomianek] engaged in fraud."

Thereafter, Pomianek claims, the Township filed disciplinary charges against him for "misrepresentation of Worker's Compensation restrictions." After Pomianek contested the charges, he claims that additional charges were filed against him for "his inability to perform the essential functions of his job" and for falsifying his employment application.

After the first day of his disciplinary hearing, Pomianek alleges that the Township "abandoned the charges and returned [him] to work." He claimed that the period of time he was out of work damaged his credit rating and required him to pay $2,700 for a lawyer.

The case is captioned Pomianek v. Gloucester Township, New Jersey Superior Court, Camden County, Docket NO. L-982-07 and Pomianek's attorney was F. Michael Daily, Jr. of Westmont. The lawsuit and settlement agreement are on-line here.

None of Pomianek's allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $13,500 payment does not constitute an admission of wrongdoing by Gloucester, Scibal Associates, Dr. Diaz-Jiminez or any of their employees or officials. All that is known for sure is that Gloucester, Scibal and Diaz-Jiminez or their insurer, for whatever reason, decided that it was better to pay Pomianek $13,500 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.