Milwaukee Employment Law Blog

We are picking up our discussion of a case out of the 8th U.S. Court of Appeals regarding an employee's long-term disability benefits claim.

The claimant had a number of physical ailments. His plan had two benefit periods. During the first 24 months, the claimant had to be unable to perform the duties of his "own occupation"; after that, benefits would only continue if he were unable to perform the duties of "any occupation." When the transition point came around, his treating physician completed the insurance company questionnaire.

Most Wisconsin jetsetters would find it hard to believe that a pilot could be fired for ensuring the safety of passengers aboard flights. Nevertheless, a recent story discusses the firing of an employee who was concerned about flight-related mechanical equipment.

The Occupational Safety and Health Administration (OSHA) recently ordered AirTran Airways, a Southwest Airlines subsidiary, to reinstate a pilot who was fired after he reported a series of safety concerns. The agency conducted an investigation and found that the airline violated whistle-blower protection laws when it terminated the employee in 2007. OSHA noted that firing the pilot in retaliation for reporting mechanical malfunctions was not acceptable. Such malfunctions compromise the safety of AirTran's workers and customers.

The Family and Medical Leave Act can be difficult for any Wisconsin worker to understand. In fact, it can be hard for employers to understand, too. It's okay if employers get confused, but it is not okay if they blunder forward without making sure they are giving employees the consideration and respect they must have.

That may have been the case in a recent lawsuit. Recently, a woman told her boss that she was going to take time off under FMLA after her baby was born, which was five months in the future. At the time she gave her boss notice, she had not worked long enough to qualify for FMLA leave (1,250 hours in the past 12 months), but by the time her baby was to be born, she would be eligible.

Starting a new job usually includes a review of the benefits plan with a human resources representative. The summary sheets give a broad overview of health and dental plans, life insurance and short- and long-term disability insurance. Most of the time, that's the last time the employee thinks about those benefits -- until he needs them.

We've been talking about a case out of the 8th U.S. Court of Appeals that involved an employee whose long-term disability benefits claim turned on the insurer's interpretation of doctors' reports. It isn't our job here to question the court's decision. We just want to show how disability plans work.

We are continuing the discussion from our last post about how insurance companies determine eligibility for benefits. A recent case out of the 8th U.S. Court of Appeals shows how heavily one insurance company relied on physician reports in a long-term disability benefit claim. The case itself did not originate in Wisconsin, but we chose it because, under some circumstances, Wisconsin courts must follow decisions from the 8th Circuit. (The 8th Circuit decides long-term disability claims brought by people in Minnesota, Iowa, Missouri, Arkansas, Nebraska, South Dakota and North Dakota.)

The case involved a company's full-time employee who developed hip problems in early 2005, about five years after he started his job. He applied for and received short-term disability benefits that several months later converted to a claim under the employer's group long-term disability insurance policy.

A couple of weeks ago we overheard someone at lunch talking about his disability claim. He was talking about a ski trip he'd taken a few years back that ended abruptly when he broke his left leg and right wrist in a nasty fall. He was laid up for weeks, and he had applied for long-term disability benefits through his job.

"Those jerks," he said. "They denied me! I hated that company. They didn't do a thing for their employees." He added that he moved to Milwaukee shortly after that and has been happily employed since.

The director of an animal shelter has brought a discrimination and a wrongful discharge lawsuit against his employer after he took medical leave under the Family and Medical Leave Act (FMLA) to treat a serious medical condition. Under the FMLA, an employee who leaves his job for a medical reason is entitled to return to the same or an equivalent position.

In this case, the employee was paid the same amount upon his return -- and retained his same benefits and title -- but he was reassigned to a different location. His authority as a supervisor was also eliminated, and his managerial duties were modified. He was fired shortly after his return to work.

For the past 10 years, the armed forces have had to learn, the hard way, how to deal with increasingly complicated injuries and disabilities. A Wisconsin Air Force base recently hosted a conference about a new system, the Integrated Disability Evaluation System, that could very well serve as a model for private sector long-term disability initiatives.

More than 250 people attended, all members of the team that handles the evaluation process for disabled service members. Base-level physical evaluation board liaison officers and physicians participated in the open forum and shared suggestions for improvements to the new program.