Help! Disability Insur. Questions.

[marleedav]

I live in WV and am very upset about my husband's disability insur. company (through his employer). Prudential paid him six weeks of disability, then terminated it, though the doctor didn't release him back to work. They stated that the doctor didn't provide sufficiant information to substanciate that my husband was totally disabled. However, they refused to send us the doctor's notes (saying it wasn't permitted). We plan to appeal, but have some questions. First, does my husband have a legal right to obtain copies of the doctor's notes sent to the insurance company? Second, The employer never sent my husband a brochure or copy of the disability insurance program. Aren't they required to? (We can't appeal if we don't know the rules). Third, do we go by WV laws, or the laws of the state in which the insurance company is located? Your help is greatly appreciated. By the way, while my husband was out sick, the company fired him!

 

[cbg]

No, your husband does not have a legal right to copies of the doctor's notes. However, you are entitled to a copy of the Summary Plan Description (abbrieviated SPD). You can and should get a copy of the SPD from your husband's employer.

If the doctor does not send sufficient information to support a disability claim, the insurance company is within its rights to stop payments until or unless such information is received.

If any state laws apply, it will be WV. However, ERISA, which is the law in which you are granted a right to a copy of the SPD, is Federal. (State law may apply with regards to specific plan information.)

Whether or not it was legal of the company to fire your husband while out on disability is very fact specific, and you have not provided enough information to say one way or the other.

 

[marleedav]

Thanks, cbg! I really appreciate you taking time to answer my questions. Since the doctor's office is ignoring our request for copies of the notes, and it's legal for Prudential not to send them to us, I don't know how we can appeal. It seems to me we'd have to know what the doctor said in order to know what we are appealing.

My husband is 61 years old and was with the company for 23 years. He was a District Manager and was actually one of their top employees. Then, the company was sold two years ago. It was obvious they wanted to get rid of the old timers. They paid quite a few to leave the company. Also, quite a few quit. Out of 14 oldtimer's who are in my husband's region, only four remain. We know my husband was next on the list. My husband filed for disability when he started having chest pains among other symptoms. The doctor told him not to work for an indefinate period of time and sent him to a Heart doctor. It turned out that it wasn't my husband's heart that caused the symptoms, but it was Chronic Anxiety (which the doctor later declared). Prior to that, when my husband's company sent him the papers to apply for disability, they included a paper that stated something about FML. We had no idea what FML was, and figured that's just what they called disability. Now, we find out it mean's Family Medical Leave, in which he had twelve weeks to return to work, or lose his position.
After the 12 weeks, my husband told his supervisor he was hoping to return to work soon. Immediately, they hired a younger person and sent my husband a letter saying his position had been terminated. However, they said if he was released before the six month disability was up, they would offer him another equal job, if one was available. We KNEW there was one such position available. My husband got released and I called Human Resources to say he was able to return to work (and faxed them the doctor's note). Within a few days, they hired a young person to fill that position and sent my husband a letter saying they were sorry, but nothing was available and he was offically terminated. The two young people they hired had NO experience at all in the field. So, we know, like others they hired, they just wanted young people who they could "mold" and also pay lesser salaries to. The thing that gets me is, they used my husband's illness to get rid of him so they wouldn't have to offer him a package as they did the others. I realize they had legal rights to terminate my husband's position after 12 weeks, but the fact that they didn't hire anyone until he talked about coming back, tells me they wanted to get rid of him. So, he's now without a job and was on disability for six weeks with no pay from the insurance company. I'm sorry to make this such a long message, but it's not fair.

 

[cbg]

Couple of questions:

Did the information you were sent about FMLA indicate that at the end of the 12 weeks, he could be terminated?

Did the information about re-hire say he COULD be rehired, or that he WOULD?

One thing you should be aware of: If they had already interviewed and made a selection of a new hire BEFORE they received the information that your husband was ready to return to work, it was neither illegal nor discriminatory for them to go ahead with the hiring of the younger person.

I'm not prepared to say yet that you have an age discrimination claim, but let's work on it.

 

[marleedav]

Yes, unfortunately the FML paper did say they would only hold his position for 12 weeks, but we didn't see it until we went back recently and read it again. I suppose my husband just filled out and signed the papers in good faith because I had spoken with the director of Human Resources and she explained that he was allowed to take up to six months short term disability. To me, that sounded like sick leave and I figured by being "allowed" six months leave, that would mean he could return.

The answer to your second question is they said he "Would" be allowed to return within 12 weeks. But then, when he wasn't able and they sent him that letter stating his position was terminated, they said he "Could" be re-hired if an equal position were available and he returned before the six months ended. But, after he told them he was definately ready to return, they hired someone else to fill the only available position.

It's hard to know if these two younger people had been pre-selected prior to my husband's doctor release. The girl they hired to fill my husband's DSM position was supposedly hired as a temporary "fill in" while my husband was out. Then, when he talked about coming back, they gave her the position on a permanent basis. But the thing is, on Feb. 2, she told one of my husband's co-workers she had just been hired that morning. However, the letter the company sent my husband, dated Jan. 30th stated the position had already been filled. If the girl was right about being hired on 2/2, then the position wasn't filled at the time they wrote my husband the letter. As far as the young man they hired goes, he was formally a construction worker who was filling in as a temporary route distributor for my husband's company. My husband's company is a cookie company that delivers cookies to major grocery stores. My husband was in charge of the Washington Metro area (which included parts of Maryland and Virginia). The girl they hired was previously in the greeting card business. I don't see why they'd perfer a construction worker and a person from the greeting card business over my husband who was in the retail food business for 18 years, and the cookie distribution business for 23 years. It doesn't make sense. I could see them getting entry level positions, but not supervisor positions!

 

[marleedav]

On second thought, I think they indicated they definately would re-hire my husband if a position was available. I'm going to look for the letter now and will quote it to you.

 

[marleedav]

Okay, I'm back with the letter. It begins with saying his 12 weeks of FML were up and his position was no longer available. Then, it said, "Should you be released to return to work, (Company name) may offer you a position based on job availability for which you qualify and in accordance with any physical restrictions you may have at the time you are released to return to work. If you are unable to return to any position, or if you are released to return to work and a position is not available for which you qualify, your employment with (Company name) will be terminated."

He had no restrictions upon his release. and there WAS a position available for which he qualified. But they filled it after he notified them he was released. Therefore, he was terminated ("If you are released to return to work and a position is not available for which you qualify, your employment with (Company name) will be terminated"). So, they did promise him a position if available and if he qualified. But, they made it so nothing was available in his region. Also, they never asked him if he'd be willing to transfer if a position was available in another part of the country. The 2nd letter that officially terminated him said they didn't *foresee anything in the near future, therefore, he was terminated (*they were speaking of a position opening for him in the future). I don't see how anyone can foresee if a position will become available. Not only that, but it would have been nice if they said, "Should something become available, you will be considered first." They simply didn't want him back.

Another thing I forgot to mention was that my husband was doing TWO jobs. He was handling major accounts, such as Giant Food, Safeway, and Shoppers Warehouse, in addition to managing his district. He told one of his bosses that he wanted to either be an Account Manager or a District Sales Manager, but to be both, was asking a lot (and without the pay of two jobs!). They never relieved him of his responsibliities. In fact, they gave him even more responsibility which we now know is what caused his illness. But, when my husband became ill, they hired an Account Manager for the major chain stores, and a temporary DSM. So, they had two people doing the work that one man was doing. The big boss even stood up at a meeting and said, "I don't know how John Brown (fake name for my husband), did all he did. That's why we have Account Managers and District Managers." He said this to explain why he hired an Account Manager PLUS another person to fill in for my husband's DSM duties. If he thought it was so hard on my husband, why didn't he do something about it before? I'll tell you why! Either they were trying to kill him, or force him to resign.

One more thing....another DSM friend of my husband's told my husband that back in Dec. he told their supervisor that "John Brown may be returning soon". The boss said, "We'll deal with that when the time comes." What does that mean?

 

[cbg]

"May offer" does not mean "will offer" - it means, "might offer".

You still may have to prove that they had not already made a hiring decision prior to learning that your husband was ready to return to work.

Okay, now that we've gone through the details, the ONLY way anything illegal happened is if they did not want him back because of his age and manipulated things to get that result. That's the bad news.

The good news is that if you file a complaint of age discrimination with the EEOC and/or your state discrimination agency, the burden is on them to show that they did not so discriminate.

Keep in mind that filing a claim does not mean you will win. There are any number of possibilities, from the EEOC finding that you have no case, to the company being forced to return him to work with back wages, and ANYTHING in between. It is possible, based on what you've said, that no illegal discrimination took place. It's also possible that age discrimination did take place. It's never cut and dried.

However, any time anyone in their 60's is released from work, it's worth at least placing a call to the EEOC for an opinion.

Let me know how it goes.

 

[marleedav]

I hate to sound stupid, but what's the EEOC? Although I'm certain this is a case of age discrimination, I guess it will be hard to prove. There is no way to find out if the company had already decided on hiring these particular people prior to my husband's Dr. release. However, it is certain they had decided they didn't want him back. Again, this can't be proven. I guess the big boys win and the little guy loses (as usual).

 

[cbg]

The EEOC is a Federal agency, and the initals stand for Equal Employment Opportunity Commission. They are charged with investigating claims of illegal discrimination. I can't promise you what they'll do, but don't write everything off without at least talking to them. www.eeoc.gov