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LawTalk
LawTalk, Attorney
Category: Employment Law
Satisfied Customers: 27888
Experience:  30 years legal experience and I keep current in Employment Law through regular continuing education.
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I have been on short term disability through ATT, due to abdominal

Customer Question

I have been on short term disability through ATT, due to abdominal issues. The doctors have been able to successfully find Colitis as well as esophigitus and hiatial hernia through EGD, Colonoscopy, and small bowel pass-through. I have been in a tremendous amount of pain, making it very difficult to sit, stand or concentrate for any extended period of time. I just found out, 5 days past my approved compensation time, that I have been denied for my extension to short term disability, putting me over in my "attendance points" which will cause me to lose my job. Had I been contacted and a message left prior to today, I could have at least been within my allotted "attendance points" and not in danger of losing my job. Is this legal? And if I lose my job due to this, is this something that I can seek compensation (besides unemployment) for?
Submitted: 4 years ago.
Category: Employment Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm sorry to hear of your dilemma.

You should contact HR as soon as possible and apply for leave under the Family Medical Leave Act. Under the FMLA you may take up to 12 weeks leave every 12 months for serious medical problems. Your physician will need to disable you but under the circumstances this should not pose a problem. Ask that the non-disability time you have been assessed also be included in the FMLA leave period so that your job is not at risk.

Under the FMLA, your employer may not terminate you for taking FMLA leave and provided you are able to return withing the 12 week time period, they must hold your job for you.

I wish you the best in 2010.

Best regards,

Doug

Customer: replied 4 years ago.

Here in lies the rub. I have npt been with the company long enough to receive FMLA. I am sorry I didnt make that statement clear in my initial question. I understand the FMLA states you have to be employed with the company for 12 months. that would put me at May 18th, 2010 for FMLA.

 

What are my other options, if any, or was I told the wrong information about FMLA?

Expert:  LawTalk replied 4 years ago.
Yes, you must have been employed a TOTAL of at least 12 months---though not consecutive 12 month period--- and have worked a minimum of 1250 hours in the past 365 days for the company.

If you have any accumulated sick time or leave time that you could substitute for the 5 days---and if you can return to work now---perhaps the company will work with you.

Aside from that, there is no legal recourse, I'm afraid. Unemployment benefits will be your only fall back.

I understand that you may be disappointed by the Answer you received, as it was not entirely favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so. I do work diligently to provide you with the correct Answer under the law, and because I have no control over what the law is, I ask you not to hold that against me. It has been my pleasure to assist you, and would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having answered your Question. Thank you in advance.

Best regards,

Doug

Customer: replied 4 years ago.

One more question. As I am having a difficult time digesting.

 

I was contacted last week by my caseworked through short term disability. No message was ever left. I returned the call immediately. No notes as to WHY she called, only to state that she HAD called. How is any of this my fault? And why is it fair for companies to do this when all I have done is followed everything they have asked me to do to a "T?" I had no forewarning before my points fully totaled termination status. Had there been due dilligence done by the company that represents ATT, I could have at least made an attempt to salvage my job.

 

Again, how is there no legal recourse for feeling as though I just got thrown "under the bus?"

Expert:  LawTalk replied 4 years ago.
Why did your disability end? You haven't said.
Customer: replied 4 years ago.
The disabilty ended due to the insurance company concluding that my ailment was not severe enough to prevent me from "sit talk type" which are most of my general duties as a customer service representative in a call center where on average I would field 30-50 calls in an 8 hour shift with an expected "signed-in" percentage (being logged in to accept incoming phone calls) at over 90%... Hard to due with abdoment issues, and nasuea, and constipation on some days, diarreah on others....
Expert:  LawTalk replied 4 years ago.
Good afternoon,

You almost certainly have an appeal process as regards XXXXX XXXXX company's refusal to extend disability, and you will have to use that process. If you are successful that should help you in keeping your job.

An alternative, while not a guarantee by any means, would be to sue the insurance company for insurance bad faith. This is a complicated and expensive suit to follow through with and if your case qualifies, you will absolutely need an attorney to assist you.

I wish you well in your future.

Best regards,

Doug

Customer: replied 4 years ago.

Would this also constitue for the fact that I have been telling the doctors that I have been having side effects to the various and different medications they have been putting me on? Including dizziness, blurred vision, sleepiness, am on a form of muscle relaxer to help the spastic colon?

 

Would thta also fall under this potential "insurance bad faith" case?

 

 

Expert:  LawTalk replied 4 years ago.
Good afternoon,

Would this also constitute for the fact that I have been telling the doctors that I have been having side effects to the various and different medications they have been putting me on? Including dizziness, blurred vision, sleepiness, am on a form of muscle relaxer to help the spastic colon? No, side effects of drugs don't constitute bad faith. bad faith is when an insurance deliberately overlooks, or under evaluates a claim, or symptoms suffered by an individual, with the intent to provide a case evaluation which will allow coverage to be denied or reduced.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

Customer: replied 4 years ago.
So if they have all that inormation, reagarding side effects and what not (presumabely), and they are still ruling against me, would it be beneficial to first get back in touch with my doctor have the mresubmit all the information? And then, if appeal comes back denied again, to look at the possibility of this other avenue? Or do I need to get United Healthcare involved and have them step in as well (as they are not the administrator of the STD, but my healthcare company?)
Expert:  LawTalk replied 4 years ago.
Good afternoon,

Given that you have been denied an extension---you must first look at what appeal rights you have. Failure to file a timely appeal of the denial will likely waive your right to later do so.

This is not just a matter of trying to convince them by re-submitting information. With nothing new, nothing will change. If the appeal is denied, then look to legal avenues of redress.

I wish you well.

Best regards,

Doug

Customer: replied 4 years ago.
Do I file an appeal with the insurance (STD) company?
Expert:  LawTalk replied 4 years ago.
Good afternoon,

Yes, the appeal process will be a part of the insurance company claims policy. You will likely find information about the process in your policy language, or through your file's adjuster.

I wish you the best.

Best regards,

Doug

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