Friday Q & A On Wednesday

CommentsDCS has been receiving so many questions that it’s difficult to keep up with lately. Here are a few questions I’ve received in the last week.

Is FMLA and ADA the same thing?

Insureds are often confused about FMLA and ADA. FMLA is an acronym for the Family Medical Leave Act and ADA is the American’s with Disabilities Act. FMLA and ADA are two separate federal laws.

FMLA runs consecutively with STD and is unpaid leave and job/benefits protection for a period of 12 weeks. Employees are entitled to FMLA after working 12 months and accumulating 1,250 work hours. FMLA entitlement is limited to 480 hours (12 weeks x 40 hours per week) but employees can continue to be paid by using up vacation and sick time.

Employers often go crazy when employers work fractional hours. It’s often a nightmare to keep track of, particularly when employees are out and back and out and back to work.

FMLA can involve an entirely different set of paperwork including physician certification. Basically, FMLA is a “permission” for unpaid leave, job protection, and continuation of payment of health and other benefits for a period of 12 weeks. After 12 weeks employers may terminate employment with the full buy in of the federal government. When they DO terminate employees they must offer COBRA, an expensive health insurance that charges insureds a 42% surcharge.

ADA, or Americans with Disabilities Act deals with employer accommodations for those who want to stay at work but require special “considerations” from employers. Amendments to ADA have given employers significant decision-making authority to either agree to workplace accommodation or turn it down.

There are now so many loopholes to ADA it’s difficult to support the law as having real benefit to employees. Those who are receiving STD, and who can return to work with accommodations, might be disappointed when employers refuse an ADA accommodation as unreasonable or an unreasonable burden. Bottom line, employers want healthy employees who are able to perform jobs the way they should be performed without accommodations.

What does the doctor mean when he says I can return to work with “limitations?”

A “limitation” is a work duty you may do, but only to a limited extent. For example, statements such as “Patient is limited to walking/standing not greater than 10-15 minutes” is a work limitation. Physicians often miss the boat in describing specific limitations particularly in complex situations.

Limitations are “assignments” of work activity you may only do to a limited extent. This is different from “restrictions” which are work duties you may never perform. For example, “This patient is permanent restricted from prolonged keyboarding” vs. “This patient is limited to intermittent keyboarding to 10-15 minutes.”

If your physician recommends you can return to work with limitations I strongly suggest that you contact your current employer for a return to work, or start looking for another job with a new employer.

Questions about Jim Orr III and Harold Chandler.

I’ve been getting a lot of questions about these two Unum CEOs lately. I worked for Jim Orr III as a Compensation Specialist in Unum Enterprise at the beginning of my career with Unum and found him to be an executive who had real concern for the employees. I attended a breakfast for claims handlers with CEO Orr who said, “Unum wouldn’t exist if it were not for you [pointing at all of us].” Jim Orr was personable, appreciative and ran Unum putting employees first.

Jim Orr III did everything he could to save the company, from starting the 1998 People Goals programs to granting employee Stock Options, to documenting company wide diversity programs. I considered Jim Orr III a CEO “of the people” so to speak. Unum’s lighthouse logo of “We see farther” was epitomized in the person of Jim Orr III.

In contrast, Harold Chandler literally stole our cheese. He and his Provident/Revere thuggery stormed the Portland, ME campus with a vengeance. I remember watching him arrive at the HOIII building on outer Congress Street surrounded by his “wise guy” bodyguards. The team of Chandler/Mohney/Arnold literally removed every employee benefit there was, from cafeteria subsidies to bonuses, to increasing the workweek from 38 to 40 hours, –it was a real mess.

Despite the deliberate awarding of employee stock options to encourage employees to stay during the merger, many employees said, “the hell with this” and left anyway. Internally, pronouncements were made directing claims handlers NOT to consider the opinions of treating physicians, and financial reserve figures were connected to BAS coding requiring managers to “validate” every claims decision. Autonomy to make independent claims decisions was removed and the company launched into a huge understaffed backlog that took Unum many years to crawl out from under.

When Jim Orr III was paid a $50M bonus, Harold Chandler quickly threatened suit if he was not paid the same. There are those today who allege Chandler and his wise guys ruined the company. I agree with that notion, but he did get his $50M.

What does 50% of pre-disability earnings mean?

Pre-disability earnings means the salary or wages you received just prior to your date of disability. Every disability policy contains provisions as to how “pre-disability earnings” is defined. Sometimes it’s defined as,” W-2 income” of year prior to disability or an average of 12. months earnings including (nor not) commissions and bonuses. It’s important to read in your policy how “pre-disability earnings” is actually defined. Benefits are always a percentage of calculated pre-disability earnings [50%, 60%, or 66.667%, rarely 70%] This type of benefit calculation is most common in ERISA Group Plans as compared to IDI policies where insureds actually buy a fixed stated amount of benefit.

Are neuropsychological tests wrong?

Not necessarily, but they are “opinionated” and in my opinion should not be classified as “objective evidence.” Neuropsychologists administering the exam choose a “battery of tests” that are supposed to represent diagnostic tools to evaluate the individual. However, in reality, insurance neuropsyche (claims handler slang) tests are set ups from the very beginning because insurance evaluators choose batteries of tests that evaluate, not the disability, but malingering and somatoform situations.

In any event, the insured is administered an unrelated “battery of tests” and the results are compared to statistically generated averaging within certain groups to determine the results. Once those results are obtained, evaluators then “interpret” the results. And this is considered “objective evidence?” I don’t agree.

Treating neuropsychologists should have input into the selection of the battery of tests and then have the opportunity of reviewing, and interpreting the raw data. Insurance neuropsyche tests are one of the most misused “stack the deck” evaluations used by insurers as back-up to deny claims.