To cbg

[marleedav]

You have been so wonderful and helpful. I know your time is valuable and appreciate you spending so much of it on me. I will contact the EEOC! Meanwhile, my husband went to have a free consolation with an Employer Employee Relations attorney yesterday. The man thought he may have a case (I don't see how, after what you told me). He offered to take it on consignment, but we'd pay expenses. His feeling is no jury would be in favor of a multi-million dollar business over a "poor little old man". Since money is so tight, even to pay lawyer's expenses can hurt us (if we lose). If you were us, would you take the chance? Also, any advice on health insurance. We got a notice from Cobra that it will cost us $424.00 a month! We'll have to take that money out of the little bit of IRA we have left. Someone told me there are government grants that will help with Cobra. I've never heard of this. Sorry to bother you with more questions, but the walls have suddenly tumbled down in our lives.

 

[cbg]

Oh, I think you have a case too. I just don't want you to think it's a slam dunk, because it isn't. It never is, unless they're stupid enough to actually say something like, "we don't want people over 40 working for us". If you're unsure, though, talk to a couple of different lawyers and see what they say. If several think you have a case, you might feel better about it.

As far as the COBRA goes, that price is actually about right, or possibly even on the low side if you live in a state with high insurance costs. I'm not familiar with any government grants for it but that doesn't mean they don't exist. The agency to ask about would be the US DOL. If they can't help you, ask the state DOL in case the grants are state rather than Federal. There's no getting around it; COBRA is expensive.

 

[marleedav]

There are only three law firms in our area that specialize in Employer Employee Relations. The first two my husband called said age discrimination's hard to prove and they never invited him in for a consultation. The third lawer said it's hard to get details on the phone and asked him to come in for a free 30 minute consultation. The guy was so nice and ended up spending an hour and a half with him. He's the one who thinks we have a case.

Concerning your answer to my Cobra question, does the DOL stand for Department Of Labor? Is that who I should call?

Changing the subject, and getting back to Disability Insurance...you asked me the other day if the FML Leave Of Absense Request form stated anything about my husband having 12 weeks to return. No, it did not. He filled this out on 10/11/01, thinking it was part of his request for disability. The human resources director even checked off where it had "Type Of Leave": Employee Medical Leave, Family Member Medical Leave, Military Leave, or Personal Leave. She checked "Employee Medical Leave" and sent the paper to my husband to complete. On 11/8 she sent him a letter saying his FML was approved, and with that letter she included a form she filled out called, "Employer Response to Employee Request for Family or Medical Leave, Optional use form - see 29 CFR 825.301." This looked like an offical Dept. Of Labor Form. This is the form that stated something about the 12 weeks. But, it was very confusing. It said, "Except as explained below, you have a right under the FMLA for up to 12 weeks of unpaid leave in a 12 month period for the reasons listed above. Also, your health benefits must be maintained during any period of unpaid leave under the same conditions as if you continued to work, and you must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from leave." The "unpaid" leave is what threw us. Since he was getting paid and had plenty of sick leave, we didn't think this applied to him. We were told "verbally" that he was eligable for up to 6 months disability and took that to mean he could return within the 6 months. (Am I confusing you with all of this?)

Now back to my husband being dropped by Prudential Disability Insurance for lack of sufficient evidence from the doctor that he couldn't work. Well, I called Prudential the middle of Jan. to say my husband hadn't received a check since 12/31. The lady said she needed a note from the doctor stating why he couldn't work. On 2/1 the doctor wrote this note to them: "My patient suffers from acute and chronic anxiety which has temporarily disabled him due to multiple physical symptoms. He has just started Paxil to help alleviate these symptoms. He should do no long distance driving indefinately. If he is not improving in three weeks, further speciality consultation will be necessary." The insurance co. didn't accept that and said, "Why did the doctor suddenly determine your husband's illness was anxiety? If it was anxiety, why didn't he treat him for it all along? And why wasn't he referred to a specialist?" The answer to that is the doctor didn't know what was wrong until my husband explained in further detail his fears of driving to to anxiety attacks. Then, he put him on Paxil. Paxil alleviated the symptoms, so the doctor released him on 2/18. Prior to that, if my husband couldn't drive, how could he work? Prudentil tells me he could have worked anyway! My husband didn't work in an office where he may have been able to catch a ride. His job involved being on the road, driving for miles.

I realize I have two big issues here, one with the company and posssible age discrimination, and one with the Disablilty people. What's strange is the disability company cut my husband off on the exact same day (12/31) that the company said his FML was over!

I swore to myself I wouldn't write you another long letter, but I just can't help it. I feel so helpless!

 

[cbg]

Yes, DOL stands for Department of Labor. The Federal DOL handles COBRA issues since COBRA is a Federal law. But again, if they don't know anything about the government grants, check with the state DOL since WV may have implemented something locally.

You have three different issues; was FMLA handled correctly; does your husband have an age discrimination claim; was the disability claim handled properly.

I truly do not see where the FMLA has been violated in any way. Under the FMLA, an employee is entitled to up to 12 weeks of unpaid leave. Payment under a disability plan is something separate. You are not being paid by the employer; you're being paid by Prudential. As far as your employer is concerned, this is unpaid leave. As long as your husband received 12 weeks of leave after the FMLA paperwork was sent, that aspect has been handled correctly. If he did not get 12 weeks of leave, let me know. This is a totally separate issue from the 26 weeks of disability - we'll get to that in a minute.

If the employee returns to work within the 12 weeks, the employer is required to return the employee to the same or an equivalent position; however, if the 12 weeks is exceeded, the employer has no obligation under the FMLA to return the employee to work at all, let alone to the same position. However, in your case it was definitely implied that as long as your husband was ready to work within 6 months he would still have a job, and then someone younger was hired instead. While this is not proof positive of age discrimination, it's certainly questionable and worth investigating. Not as an FMLA violation, but as age discrimination. It is illegal to make a hiring decision based on someone's age, if that person is over 40.

Finally, the disability. Lack of sufficient evidence of disability IS a valid reason for dropping coverage. In most cases, if the doctor were to then answer their questions and provide the information requested, they would then pick the benefits back up. I have to tell you, I've worked with Prudential and I've found them to be more inclined to give the employee the benefit of the doubt than otherwise. Do you know whether the plan is fully insured or self-insured? (By that I mean, does Prudential make the payments or do they only administer and the employer makes the payments? From your description, I'm guessing fully insured but I could be wrong. You may not know; don't worry if you don't.) The only way your husband's employer is responsible for the disability issue is if it's a self insured plan. It is not at all uncommon for a disability carrier, and I know this for sure about Prudential, to continue benefits even after termination, as long as the employee continues to be disabled and was covered at the time of the disability. That's why it's possible to be terminated after 12 weeks and still get disability benefits for 26 weeks.

Have you gone back to the doctor and asked him to respond to Prudential's questions?

I cannot advise you as to whether or not to go with the lawyer. However, what you could do is talk to the EEOC. First, they don't cost you anything at all. One suggestion; file a complaint with the EEOC. If they find evidence of discrimination and take the case for you, fine; if they issue you a Right to Sue letter, you can always go with the attorney at that point.

 

[marleedav]

That's good advice. I just called the EEOC. There was a recording stating that if you feel you've been discriminated against to leave your name, address, and phone. They would then mail you some forms. After the completed forms have been returned, they will respond within 8 weeks to let you know if you have a valid complaint. I don't know if these forms are going to have enough space to explain our circumstances totally! It's such a long story! But, we will do as you suggest and wait to see what the EEOC has to say. If it looks good, we'll take legal action. Well, at least my mind's settled on that issue. Phew!

Regarding the disability/FML. My husband went out sick on 10/8. He filed for disability on 10/11. On 11/8, the company sent my husband a letter. It stated: "Enclosed is paperwork notifying you that your medical leave has been approved under the Family and Medical Leave Act (FMLO) effective October 8. I am also writing to inform you of some issues regarding your medical leave and short term disability. As I explained to your wife, there is a 30 day elimination period before short-term disability goes into effect. Your 30 day elimination period was satisfied as of November 6, 2001. Once short-term disability has been approved by Prudential Insurance Company, your disability pay will begin as of November 7, 2001. As a result, the paycheck you will receive from Archway on November 15th will only be for two (2) days of pay (November 5th and 6th). We will take the insurance premiums for your benefits from that last check. Disability checks will be sent directly to you from Prudential...<and the letter goes on>". So, the company paid my husband sick leave from 10/8 until 11/6. Then, Prudential paid him from 11/7 until 12/31. Dec. 31 is the day the company claims his FML was over. But, if 12 weeks unpaid leave means the insurance company is paying, rather than the employer, he didn't get 12 weeks unpaid leave. He was only receiving "unpaid leave" from Prudential from 11/7 to 12/31. Technically, I would think the beginning of the FML would be from the time Prudential paid him (11/7) rather than when he was receiving sick pay (10/8-11/6). But the company claims the FML began the first day my husband was out sick (and that's what they wrote down on the form). We still never understood what the elimanation period's all about.

As far as the doctor answering their questions, they never asked him any questions. They only faxed him requesting his "medical notes". The woman at Prudential explained to me that medical notes are the notes the doctor takes during a patient's office visit. (I've never even seen him take notes!). But, he sent them some kind of notes. However, Prudential wasn't satisfied with whatever they received. Rather than contact the doctor to ask him for more specifics, they just didn't pay us anymore. Never once did they notify us to say my husband wasn't getting paid unless more information was provided. It was only when I called looking for the checks that they said the information they received wasn't sufficient. They said it didn't explain why my husband couldn't work. That's when we went into the doctor's office and told him Prudential wanted to know what prevented my husband from working during the period of Jan. 1 until the present (which was 2/1). So, he wrote the note about my husband not being able to drive. Again, rather than Prudential calling us to say the note wasn't good enough, they just simply didn't send anymore checks. Then, when I called them for the final time, they said his disability was terminated on 12/31 and we would be receiving a letter. The letter stated our right to appeal to some other person who works at Prudential.

My husband's doctor has been very hard to communicate with. It's like pulling teeth when we ask him to send Prudential additional information. He puts it on his assistant, "Sue". And believe me, Sue isn't what you call sweet. She gets very irritated when we call her. So, there's not a lot of cooperation coming from the doctor's office.

By the way, the name of my husband's company is Archway Cookies (I hope they don't see this!). Just thought I'd let you know. By the way, their main office is in Chicago. If we ever did take them to court, would it be in WV or in Chicago? Or to make things more complicated, would it be in Maryland? (We lived in MD when my husband got sick before we moved to WV in November.)

 

[cbg]

I know this is hard to understand, but you don't get 12 weeks unpaid FMLA IN ADDITION to the disability time. Try to look at it this way. Your employer offers 12 weeks leave. While that is going on, Prudential is paying disability benefits. YOUR EMPLOYER is not paying you, PRUDENTIAL is. In addition, the law does not say that FMLA time MUST be unpaid, just that it CAN be. Employers are allowed to apply sick pay, vacation, pay or personal pay to FMLA time. They're even allowed to pay for it, if they want to; it's just that the law does not require them to. So the fact that you did not have any unpaid time is irrelevant; your husband did get the 12 weeks from his employer. I've run the dates you provided, and they are correct for FMLA. You do not have an FMLA violation of any kind that I can see.

You do have the right to appeal with Prudential. It is wisest to exhaust all internal remedies before going outside. From what you have written, it is almost 100% certain that you have a fully insured disability plan. That means the money for the payments is coming from Prudential, not your employer. Since Pru is paying the benefits, they get to say (within the confines of the policy) what is and is not sufficient information. If you lose the appeal with Prudential, you can always complain to the state insurance commission (in MD, since that's where you were during the disability period).

Your husband's employer has no liability with regards to the disability claim. You would not sue them; you would sue Prudential. With regards to a potential legal case on the age discrimination, I would think you would obtain a local lawyer in WV, who would handle the jurisdiction issue for you.

 

[marleedav]

I've taken enough of your time. I'll do the things you suggest. I don't know who you are or where you come from, but for you to give me all this advice for free is so kind! From the bottom of my heart, I want to thank you. You are an angel! I wish the world had more people like you who REALLY seem to care about others.

 

[cbg]

Let me know how it comes out.

 

[marleedav]

I sure will!!