Disability Claim Denial

[Nils]

Nevada

In Sept 2001 my wife was diagnosed with MS. Diagnoses was a rather long process, and during this time my wife missed a great deal of time from her job. When she was placed on STD there were no issues concerning her benifits.

Before the illness had actually been confirmed she was placed on LTD: She had been on STD for six months.

Once the MS had been confirmed, her disability insurancer determined that her accumilated time on the job had dropped below the policies minimum requirement of 30 hours a week to 27 hours. My wife, while suffering from the illness and being diagnosed, had been missing work and so her claim was denied due to a lack of sufficient hours on the job.

We provided copies of the doctors releases to verify the medical time off, yet her appeal based on this fact was denied.

Is it legal for my wife to be penalised due to her medical time off? Or is that covered under FMLA or the ADA, causing the insurer to fall into bad faith?

 

[cbg]

MS CAN be covered under both FMLA and the ADA. That doesn't necessarily mean that your wife is entitled to consideration under either law.

In order for her to be covered under the FMLA, the company has to have over 50 employees within 75 miles of her location, AND she has to have worked for them for a minimum of 12 months AND have worked a minimum of 1,250 hours in the last 12 months. If she was out on STD for six months, it is highly unlikely that she has met the hours requirement. You also need to realize that the FMLA only protects her job for 12 weeks. Even if she is out on FMLA, if she is out longer than 12 weeks her protection is gone.

As far as the ADA goes, in order to receive ADA protection she needs to be able to perform the essential functions of the job with or without a reasonable accomodation. Although there have been rulings to include a SHORT extension of FMLA leave as a possible accomodation, the key word is short. Open-ended leaves are not a reasonable accomodation. According to my employment attorney, if an employee is not going to be able to return to work within 6 weeks of the end of FMLA leave, an extension of leave is NOT a reasonable accomodation.

A medical disability is not a get out of jail free card. If she has not worked enough hours for coverage, she has not worked enough hours for coverage.

 

[Nils]

That's very wrong

MS is not some illness simply diagnosed, and up until recently it could take as long as five years to be diagnosed. It's symptoms range from numbness and back pain (my wifes diagnoses was a re-occuring strained sprain in her back caused by a herniated disk) to blindness.

Her company employ's about 1,300 persons at this location and has 10's of thousands world wide. Her time spent being diagnosed initially threw her into the clutches of the Workmans Comp System.

So the question is: Is her medical time off covered by the FMLA and or the ADA.

She was working in a position where hourly schedule had been cut back from the standard 40 to 30/32 hours a week, so the time loss wasn't as significant, yet enough in a year to show about a total of 170 hours based on the releases she has from her doctors and vacation time she used to cover herself and recieve some income. As a side note the insurer also included that vacation time in her total hours lacking...

 

[cbg]

No, it's not wrong.

IF she has worked for the company for a minimum of 12 months AND has worked a minimum of 1,250 hours in the last 12 months, then UP TO TWELVE WEEKS of leave is protected under FMLA. Any additional leave is not protected and is entirely up to the company.

IF a SHORT additional leave would permit her to return to work and perform the essential functions of her job, then a SHORT additional leave MAY be covered under the ADA. Open ended leave is NOT covered under the ADA, period.

 

[Nils]

Minimum is covered

22 years with the employer, over 1,250 hours a year.

 

[cbg]

Okay, then. She is entitled by law to 12 weeks of protected leave. But in your initial post you said that she was out on STD for six months. That means she is LONG past the time that was protected. She is out of protected leave now, and a six month leave is far beyond what the ADA would require. As far as I can see, she is no longer protected.

 

[CIAA]

Hmmm.....typically, this type of LTD coverage provides a benefit for disability which causes you to be disabled from doing your "regular job" in the regular way, benefits starrt after 6 months of a disability and are paid for the next 12-24 mo., before requiring that you be disabled for "any occupation" for furthrer benefits.Also, this type of plan usually has a "residual disability" clause that pays you replacement income if you can do part of your job, but not all of it.

I guess what I am trying to say is that your wife may have qualified as being technically "totally disabled" from doing her regular job when and if her medical condtion caused her to have to work reduced hours, thereby possibly removing the "full time" work problem.

Employer based disability plans, subject to ERISA, are exempt from state bad faith claims (except in PA.), but you probably do have the right to further appeal. We suggest you get some professional help.

 

[Nils]

Time period...

Yes I understand that FMLA is not applicable at this point in time, this is not the time period I'm looking at to consider it's application.

The disability insurer is denying her coverage on the period of time prior to her being placed on STD. This is also the same period of time I'm speaking concerning the application of the FMLA.

What I'm speaking of is the period of time she had to spend taking medical leave of absence due to an illness that is not easily nor quickly diagnosed. When my wife was placed on STD, her true diagnosis was still only a hunch by one doctor.

Consider, if you are seemingly injured and given time to recover by a physician, and this appears to be a re-occuring injury, where each period of time lost is several days here and a week there. Now, over the period of that year, this injury becomes so serious that your employer places you on STD... Where do your total hours stand for your disability coverage, if that medical time off is not exempt.

So, it still comes down to this can medical time off be held against you in your total number hours applied to your disability claim, or are you protected under FMLA or ERISA or ADA statutes???

There are many illnesses whose symptoms may resemble other illnesses and or injuries, causing mis-diagnosis and other complications, including lost time from work while seemingly recovering from the initial diagnosis.

A final not, my wife was approved for STD and at first LTD, by both her employer and the insurer. The denial came after they learned via her employer that they where under paying her, at which time they based there denial on her not having enough total hours available and that medical time off was not exempt.

Under Section 104 of the FMLA, "LOSS OF BENEFITS. The taking of leave under Section 102 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced."

In Section 102 it speaks in depth of "medical leave" as a reason to elect the FMLA. This has also been some mention by folks as to whether each application of the FMLA over the period of a year is cumulative or if time begins anew with each application, during that year?

 

[lkc15507]

If it matters, I throw another vote in the ring with CIAA. I certainly think you need professional guidance on this. I am not a disability expert by any means, but, I think to help narrow down the possibilities in your last post, ADA and FMLA are not possible sources of action. ERISA would be the place to look. Sorry place to look it may be.

 

[cbg]

You definitely have no cause of action under the ADA. Nothing in the ADA statute requires that any leave be counted as hours worked. You're not going to get anywhere with that one. Forget it.

It's possible that you might be able to make a case for the FMLA time being counted as hours worked, but it will be a tough row to hoe. The only way I can see that one flying is if she had used up all the FMLA time BEFORE she was placed on STD.

BTW, there are several ways a company can choose to apply the FMLA year (although once they have selected one they have to stick with it). Having chosen one, however, each employee has to qualify each year. So if, having taken FMLA in year one, that means that the employee has not worked 1,250 hours in that year, they are NOT eligible for FMLA in year two. Also, each employee gets 12 weeks per year (or, to be more accurate, each 12 month period). They do NOT get an additional 12 weeks if there is a different diagnosis. The fact that your wife's illness is one that is difficult to diagnose and may not have been accurately diagnosed at first does not in any way make her eligible for more than 12 weeks protected leave in any one 12 month period. An employee can have six valid, FMLA qualifying diagnoses but they still only get 12 weeks per year.

In my opinion, ERISA is your best shot but even that is not a slam dunk. I agree that you probably need more assistance than you can get on a public bulletin board.

 

[Nils]

I understand, the points pretty clearly. My wife never used any FMLA, had plenty of hours and time with the employer, prior to her going out on STD.

My wife has never been placed on FMLA, to this day. We are not talking about protection to go back to work, we are talking about protection allowing her to recieve LTD coverage.

She is being denied based on the time spent attempting to recover from an mis-diagnosed illlness/injury prior to being placed on STD.

Can any of that period of medical time off, prior to her being placed on STD be considered FMLA?

And, yes we are seeking an attorneys assistance in this matter. For our own indepth education I come to this forum seeking points to think about and ways to help.

I've have suffered what many have called a major attorney screw-up and while not all attorneys fall into that catagory, my experience has taught me to get as much information as possible, try to learn the laws and statutes, get a second opinion, and above all; watch your back.

Oh yeah, and it's ok to fire your attorney!

 

[cbg]

Nils, until last year, the answer to your question about FMLA would have been no. Initally, no more than two days medical leave could be termed as FMLA until the employee had been notified that FMLA was going to be used.

However, in April of 2002, the US Supreme Court ruled that failure to notify the employee that time off was being applied to FMLA did not entitle the employee to additional time. The case was Ragsdale vs. World Wide International (I think that was the complete name). The employee had been off for a total of seven months, but had never been notified that any of the time was counting towards her FMLA. When she was terminated, she sued, claiming that since the company had never notified her that she was using FMLA time, she was entitled to an additional twelve weeks before she could be termed. The company claimed that since she had already received more than twice the amount of time required by FMLA, they didn't need to give her any more. The US Supreme Court ruled in favor of the employer.

With that landmark case, it is quite possible that any of the time up to AND INCLUDING the time your wife went onto STD could be considered FMLA time. Nothing whatsoever in the law prevents STD and FMLA from running concurrently, and that is, in fact, quite common.