Employee Survival Guide® - The Man Who Lost His Voice Box and His Career

Episode Date: March 24, 2021

In this episode of the Employee Survival Guide, Mark shares a real life story about a successful executive who lost his voice box due to cancer and then lost his career.  Mark guides us  through the initial stages of the employee's successful career until he was diagnosed with throat cancer.  Once the employee lost his ability to speak, his employer intentionally discriminated against the employee in an attempt to force him to quick his job. The employee took a leave of absence under the ADA and the FMLA and was able to reach a successful settlement with the employer.  Mark notes the employee was able to carve out of the settlement the employee's ongoing short and long term disability benefits; he did not waive his claims for STD and LTD benefits.  Mark then describes the difficulty and illegal actions taken by the disability benefits insurance carrier to claim the employee had an anxiety disability and not a physical disability, the loss of his voice box.  Mark describes the administrative process the employee followed to eventually obtain an award for LTD benefits for his physical disability, the loss of his voice box.  Mark concludes by summarizing the multi-layered process that every employee must follow to deal with employment discrimination and unlawful actions by a disability carrier to deny disability benefits.  The employee successfully complained of employment discrimination, obtained a sizable settlement and then proceeded to challenge his disability benefits denial and won.  All of these actions were accomplished without the need for filing a lawsuit or costly litigation in court.Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.Episode is LivePublished: Mar. 10, 2021 @ 9AM EditUnpublishTranscript is LiveIf you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here's attorney Mark Carey. Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide. And this week, we're going to have a story about a real-life situation involving a person, well, the man who lost his voice box and his career. involving a person, well, the man who lost his voice box and his career. One of my intentions in starting this podcast was to share the real-life stories of employees who successfully challenged their employers' unlawful workplace actions. These employees are everyday folks, just like yourself, who fought against their employers and objected to unlawful employment actions.

There is an important value in exploring real-life stories so you can learn the nuances and hopefully form a deeper understanding about work rules to better protect yourself from your employer. My lofty goal is to help you spot legal issues before they happen and avoid them, or at least arm you for the battle with your employer. The following story is a real employment case, but the names of the parties, the co-workers, the locations, etc. have all been changed in order to conceal their identities and preserve confidentiality. Otherwise, the facts are largely unchanged. I will narrate and point out a notable legal issue or two along the way, and then provide a few closing arguments or comments at the end. Let's introduce our character. John Fallon, born in 1963 1963 and resides in Chicago, Illinois.

He was previously employed by the Bridge Company, whose corporate headquarters are located in New York City, with offices in Chicago and Boulder, Colorado. John was first hired in May of 2015 by the former president of the Bridge Company to be employed as a manager. John worked primarily from the company's Boulder, Colorado foundry location. Within a few months, he moved to the vice president position to determine whether the company should close down one of their subsidiaries due to the fact they were losing an average of $1.3 million a year. In this role, John's primary function was to work with the management team, customers, and outside agencies to grow revenues and profits of the company. A great part of the time was spent in communication with all of the above to provide and communicate direction, strategy, and develop and strengthen relationships.

Between 2015 and 2016, John's efforts helped to drive revenue to $180 million and profits to $20 million. and profits to $20 million. As a result of these efforts, in May 2016, John was promoted to Senior Executive Vice President of the Bridge Company with an oversight and responsibility for all the operating units of the company. This role required regular visits to the operating units and a large number of phone calls, meetings, presentations, and customer visits, and planning sessions with the management teams at the locations and the Bridge Company executive management team. In June 2017, John was diagnosed with throat cancer. He had radiation treatment from June through November 2017. Initially, the prognosis was good.

But a few months later, in February 2018, John's doctors discovered more cancer. On March 1, 2018, John had total laryngectomy surgery and removed portions of his throat, including his vocal cords, which took away his ability to speak. John now breathes through a tracheotomy in his throat and eats and drinks through his mouth in two separate passageways. During the operation, a prosthesis device, a voice box, was placed in John's tracheotomy, which connects the two passageways. Over the next month or so, through training, John learned to talk by using the vibration in his throat and the prosthesis, the voice box. Although John survived the cancer,

as a result of the treatment and the surgery, he was now left with a chronic serious medical condition that significantly affected his ability to speak, communicate, and caused him serious physical limitations, discomfort, and illness. John still suffers from the serious medical condition resulting from the laryngectomy. Approximately 21 days after the laryngectomy surgery, John returned to work. Although it was a struggle to communicate as effectively as before, he was determined to do his best and remain a high-profile, high-performing exemplary employee. In May 2018, John's title was determined to do his best and remain a high-profile, high-performing exemplary employee. In May 2018, John's title was changed to Group Vice President with his responsibilities limited to the smaller operations of the company. This was a demotion. This position still required

a great deal of verbal communication, and John had difficulty communicating but still managed to do his job successfully. Despite John's devotion to his job and the results he had realized throughout his tenure with the company, in January 2020, John was again demoted to the position of a managing director of the company's foundry location in Boulder, Colorado. The company admitted that this demotion was not based on performance, but rather due to the fact they were going to sell off the operating units under John's control. John asked why they were taking them away and not keeping them under his control until they were sold, but he was not given an explanation. In fact, these units are still owned by the company today. The company's explanation for the demotion was not truthful, not legitimate, and a pretext for

improper motives to get rid of John because of his disability. Employers often lie to employees regarding the rationale for implementing an adverse demotion. Essentially, the employer is putting the writing on the wall for John to force him to quit. If John quit, he could not collect unemployment benefits and would have a hard time to argue in support of a constructive discharge, which has a difficult and fact-based evidentiary burden. And most importantly, if John did quit, he would lose his ability to apply for short-term and long-term disability benefits because he was no longer a planned participant under the company's policies. It's very important to note that. Let's continue. The Bridge Company

was well aware of John's serious health issues and that the foundry air quality was extremely poor and especially dangerous to him given his medical condition. Occupational dust exposures increase the risk of laryngeal cancer and is not suitable for John's post-laryngectomy condition. The foundry operation and the environment in the air is not conducive to his prosthesis and filter required for his HME, which covers the hole in his throat, which protects the prosthesis and gives him the ability to breathe. In addition, the foundry is located in Boulder, which would require John to travel extensively and to live away from home during the week.

The situation is extremely problematic as John's medical condition would require care located at a Chicago hospital, which is one of very few hospitals that are equipped to deal with his serious medical condition. John has had regular ongoing medical treatment at a Chicago-area hospital since his diagnosis. He has regular follow-up visits with his doctor every three months, and he saw a speech therapist who examined his prosthesis and changed it periodically, normally every six to eight weeks. His prosthesis needed to be changed within 24 hours after it began to leak

in order to avoid building up fluid in John's lungs, which will obviously adversely affect his breathing. Many hospitals have never dealt with this situation and are not sure how to proceed if he has an issue. Given these factors, John needed to remain close to home and close to his physicians so he could attend properly to his physical disability. As such, traveling to and working at the Boulder location caused John great physical hardship and risk, and his employer was well aware of this. The company refused to provide John with any reasonable accommodation for his serious condition and physical disability. Not only was the company unwilling to provide reasonable accommodations for John

in his condition, but they did exactly the opposite when they demoted him to a new position that required John to travel and to work in dangerous conditions at the company's foundry and at a reduced rate of pay. The company readily admitted that the demotion was not all performance-based. John had always been a strong contributor and had success in his work endeavors, as evidenced by his regular salary increases and positive performance reviews, until this recent series of demotions. As a result of the above-mentioned demotions and transfer to working at the Boulder Foundry, where he began his career with the company, John began to experience severe anxiety and depression related to his work situation. He has seen a therapist to help him deal with

these emotional issues related to extreme stress and anxiety he has been experiencing as a result of the work situation and the way John has been experiencing as a result of the work situation and the way John has been treated by his employer. John believed the silica exposure played a role in his laryngeal cancer and was certain that any further exposure to silica at the foundry would have an adverse effect on his voice box and pose an extreme and significant health risk to him in light of his current disability and condition. On many occasions when John worked at the foundry, he found his breathing device, the prosthesis, gets clogged with black soot from the

sand particles, and he also has experienced bleeding inside his trachea. It is unconscionable that after so many years of devoted service, that John was demoted and forced to work at a location that could have literally killed him. What was the company thinking? John claimed the company failed to provide reasonable accommodation to him for his disability by insisting that the only position for him at the company at the time was located at the foundry, which was a severely detrimental to his health and medical condition. John claimed he was targeted, treated adversely, treated disparately, demoted, denied opportunities because of his physical disability, and perceived disability. It is important to understand that state and federal disability discrimination laws protect against an employer regarding an employee as having a physical disability. We often find both forms of disability discrimination in every case.

forms of disability discrimination in every case. Here, the regarded as disability was readily apparent, as the employer complained that John could not speak with customers and management to perform his job duties because he doesn't have a voice box. John took a medical leave in February of 2020 due to his increased anxiety, serious health condition, and the physical risk associated with his demotion to the Boulder facility. Under the Family Medical Leave Act law, John was eligible to take up to 12 weeks off without pay. No other accommodation or alternative had been discussed, and despite John's request not to be transferred to the foundry, to be treated fairly and to have his concerns addressed, the company insisted this was the only position and location available to him upon his return from his medical

leave. The FMLA, by the way, provides for a similar position once you return within 12 weeks. If you return after 12 weeks, well, you don't have a guaranteed right to your position. While on the FMLA leave, John applied for and eventually received short-term disability benefits at 65% of his salary. The basis for the short-term disability approval was that John suffered from anxiety related to the loss of his voice box, but not approval for his inability to speak, a physical disability. The response made no sense. In April 2020, John applied for long-term disability with the company's insurance carrier. The basis for the application was his inability to speak due to loss of his voice box, not his anxiety caused by his disability.

We often advise clients to apply for both short- and long-term disability benefits at the same time. This speeds up the process to obtain benefits when the disability is medically well-supported, and in this case, the employee lost his voice box. box. On May 4th, 2020, John's attorney sent a letter to the company notifying it that he was taking FMLA leave and in his notice of intent to work, return to work. The employer was not too happy to hear about his intent to return to work. On May 5th, John's attorney filed on his behalf complaints of discrimination with the U.S. Equal Employment Opportunity Commission and the state agency counterpart. Again, the employer was not too happy to hear about he had filed a discrimination complaint. On May 7, 2020, John's claim for short-term disability was approved by the same disability carrier that would finally approve his long-term disability benefits. But the approval was based

only on the psychological disability, one he had never applied for. On May 8, 2020, John's attorneys sent a notice of claims letter to his employer announcing he had been discriminated against on account of his physical disability. On May 22, 2020, the insurance carrier approved John's short-term disability benefits for anxiety disability and not the loss of his voice box. It is also important to understand that the short-term disability carrier will approve short-term disability benefits not for six months entirely, but in tranches of, let's say, a couple weeks at a time. In July 2020, John was able to resolve his discrimination case with his employer before filing an expensive lawsuit. John was able to carve out of the release language in the settlement agreement that his ongoing claim for disability benefits through the employer's long-term disability carrier would continue and not be released.

It is important to include a carve-out in the release to prevent the inadvertent release of ongoing claims like stock options, pensions, disability benefits, etc. On August 4, 2020, the insurance carrier denied John's claim for long-term disability benefits. 2020, the insurance carrier denied John's claim for long-term disability benefits. The reason for the denial was because the information he had already provided did not substantiate a physical disability. John was denied benefits because he no longer had a voice box and could not communicate as a senior executive. On August 11th, John's attorney sent a letter to the carrier complaining that none of the doctors had received any telephone communications from the carrier's internal physician, even though the LTD denial letter said emphatically that the attempts to reach John's physicians was not successful. John's attorney provided the carrier the names, addresses, phone numbers, emails for each physician so the internal claims physician could contact them.

No contact was ever made. so the internal claims physician could contact them. No contact was ever made. John's attorney also requested a copy of the vocational assessment used initially to deny his long-term disability claim. The carrier refused to provide the document without explanation, which is illegal. The carrier is required under federal law to provide copies of the claim file to the employee or his attorney. The federal law here is the Employee Retirement Income Security Act, also known as ERISA, E-R-I-S-A. On September 3, 2020, John's attorney sent a letter to the insurance carrier notifying them he would be filing an administrative appeal of his denial

of benefits. He also requested a copy of the vocational analysis report that was used to deny his client's LTD benefits. The carrier again refused. John's attorney freaked out on the carrier and demanded the immediate production of the vocational report as is required by federal law. Again, ERISA. On September 29, 2020, John's attorney filed an internal appeal of the insurance carrier's unlawful denial of his long-term disability benefits. On November 20, 2020, the insurance carrier reversed course and awarded Mr. Fallon long-term disability benefits, but for the wrong disability. The carrier awarded benefits to John because of his purported psychological impairment of anxiety, but not the loss of his voice box. The carrier also provided a copy of the vocational assessment conducted by an internal claims physician who performed a document review and never interviewed Mr. Fallon.

Which is the standard in the insurance industry these days? The physician stated in his medical experience that John's prognosis was good and he did not have a functional impairment. For God's sakes, he lost his voice box and cannot communicate with anybody. He lost his job for the same reason. On December 4, 2020, the insurance carrier notified John. They would not accept any further administrative appeals for the denial of the long-term disability benefits for this physical disability because they had already approved his claim for disability benefits based on his anxiety disorder. It is extremely important to understand that under almost all LTD benefit policies, mental nervous conditions such as anxiety disorder have a two-year limitations of benefits. The insurance company was playing fast and loose with his benefits, claiming it had approved them

for mental nervous condition, even though all the facts pointed to the physical disability of loss of a voice box and failure to communicate, which is an essential function of his job. The further insult was that the insurance company attempted to cut off any attempt to file an appeal after the decision, which is extremely illegal. On January 6, 2021, John's attorney called the carrier to discuss the appeal of the LTD benefits based solely on the physical disability. The claim's representatives stated for the very first time that a psychological review was conducted, but the carrier refused to provide a copy of the report without explanation. Although technically the claim was approved based on an anxiety disorder,

the insurance company had an obligation under federal law, ERISA, to tell John why it had approved the claim for disability benefits, which they did. But what they failed to mention was the report that they had utilized was completely irrelevant and the person writing the report had no psychological training or experience. This was an example of an arbitrary decision making process which can result in the reversal of any claim denial. John's attorney brought this fact immediately to the attention of the carrier and demanded a further appeal. During the call, John's attorney informed the carrier that he would be filing a suit in federal court if the claim denial was not reversed.

Each claimant in an ERISA benefit claim must exhaust administrative and internal appeals with the insurance carrier before filing a lawsuit that is required under ERISA. You need to refer to your plan document to find out the specifics of the administrative process, usually contained at the very end of every plan. Let's continue. On February 2, 2021, the carrier reversed its prior decision and awarded benefits solely based on John's physical disability, the loss of his voice box. The carrier backpedaled on the previous award based on psychological disability and never offered an explanation why they pursued that basis without any factual support in the administrative claim record. The above real story highlights the importance and cross-function of three federal statutes, the Americans with Disabilities Act, the ADA, the Family Medical Leave Act, the FMLA, and ERISA, the Employee Retirement Income Security Act,

and how they overlap in everyday life of employees facing career-ending situations. You need to understand this three-way interaction in order to maximize your employment rights and benefits. In summary, John was able to obtain a family medical leave, enforce his rights under the ADA, and obtain a sizable settlement from his employer. He was also able to hold open his disability benefits rights under ERISA and maximize those benefits until his age of retirement. This is exactly what Congress envisioned in terms of the interaction of these three statutes working together. John just needed an advocate to make sure the employer was playing by the rules, which it was not.

If you need more information related to this story, please contact Cary & Associates PC at info at capclaw.com or call 203-255-4150. I hope you enjoyed the insights from this story, the real-life situation. Have a great week.