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recently diagnosed bipolar, eliminate poor job reference

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  • recently diagnosed bipolar, eliminate poor job reference

    My 20 year old son was terminated in December of 2005 for unexcused absences and tardies when the previous supervisor was accommodating his mental disability, but the new supervisor did not. He had undiagnosed bipolar disorder and was hospitalized for a separate medical issue in September for which the old supervisor new he was severly depressed afterward so unexcused absences and tardies were overlooked. During this time, once he was at work, he was given several awards for his outstanding performances. He applied for FMLA for the separate medical issue but was denied because he was just a month short of being there a year. He did not reapply in November like he should have because his supervisor was making disability accomadations, albeit not officially in writing since my son was unaware he had such a severe medical issue and he expected to overcome it shortly. Neither supervisor requested a new medical evaluation. Of note, his supervisor is off site in another state and the employer has more than 500 employees. My son would have qualified for FMLA if he had reapplied. The employer mislead him that they were accommodating his disability, but my son didn't know he had a disability that was permanent and would last so long. If the employer had asked for another medical note, my son probably would have gotten one and then been diagnosed. Too late, my son was terminated by phone. When asked why he was tardy, he responded he had personal issues. He has been under a doctor's care for the depression and bipolar only since May 1, but has not been able to work. The doctor thinks his mental illness is under control and now he can work as long as he takes his medications. Our question is, how can we eliminate a poor job reference from the old supervisor who claims a deriliction of job duties?

    Also, unemployment appeals have been unsuccessful to eliminate overpayment of benefts. Our state granted him unemployment but then determined he should have known he was not entitled to them. We thought the employer had responded, when they had not at first. In the June 2006 appeal, which the doctor gave me a note to represent my son, I agreed the employer hadn't responded at first, but did not add we only knew that afterwards. My son owes two months of unemployment benefits back received during the time from his termination and learning the employer disagreed with him receiving benefits.

    My son was not medically able to discuss on the phone his medical and legal issues and the employer should have reasonably suspected why. He was fired by phone, and the unemployment hearings were only offered by phone and at that time my son did not know his disability prevented him from participating. Our state claims he should have known he wasn't entitled to unemployment benefits and want them back.

    My son is not fighting the previous employer because he now knows the new supervisor (November and December) was only enforcing company policy. It appears the old supervisor was simply ignoring policy as a means of disability accomadation, but my son doesn't want to believe that and just wants to get on with his life, but it would be helpful to learn how we explain the termination without discrimation from prospective employers. He does not want new prospective employers to know he is being treated for his newly "unseen" mental illness, nor does he now need special accommodations. The doctor agrees he has had this for several years and it was exacerbated by his September surgery, but he is fully functional under treatment and no longer requires special treatment. Other employees could testify he was receiving accommodations for his illness and that he also was doing an outstanding job at work and received many awards for innovations he created during the time from September to December, when he was fired for unexcused absences. Shouldn't the employer have reasonably suspected depression and questioned why the policy was not previously followed and then requested a medical evaluation rather than a confrontation on the phone?

    He new job prospects require the job experience he obtained from this employer (a year of remedy help-desk experience, in addition to his education), but how can we get a good job reference out of all of this?

  • rjc
    replied
    I will still strongly advise that you seek counsel. I understand that you may not be able to afford private counsel, but I am sure there are legal aid services in Idaho that you and/or your son would qualify for. Many legal aid services can competently assist you in these matters.

    The decision by the Industrial Commission is not final, but can be appealed to the ID Supreme Court. While it sounds daunting, it really is not and a competent attorney can guide you through the process.

    I truly believe you have a strong argument not only to get the overpayment waived based on the DOL's error and the lack of any willful intent to defraud on the part of your son, but also to permit your son an opportunity to be heard on the substantive issue of separation, thereby giving him a chance to be deemed eligible to collect.

    Leave a comment:


  • stacia stansell
    replied
    they granted him benefits then blame him for taking them

    I so much appreciate your thoughts about the benefits. It seemed unreal to me that they granted him benefits then blame him for taking them. At my work, I'm a 20 year veteran of the Idaho Transportation Dept. we always consider the intent of the law, not just someone's interpretation of it, such as the appeals examiner.

    If he had a job maybe we could afford counsel. Also, I don't think he is up to fighting it, since he has been through a lot to get well and I'm not up to fighting it too since I've been ill and also working my daughtrs medical appeals during this time too.

    His depression caused withdrawal behavior and he ignored the employer's appeal hearing. AFter I found the written decision, they called his absences deliberate misconduct, and realized what was going on I typed a letter of explanation/written appeal of the appeal decision, had him sign it, and I submitted it on the deadline. This was before the doctor visit. The denial said that we hadn't explained why he missed the phone hearing, only too late we found out it was medical reasons. There was no other appeal procedure, they said it was final.

    The overpayment appeal was a different process with the same deadline. We asked for a waiver based on he could not have reasonably known he wasn't entitled to the benefits granted him. The doctor signed a note that I could represent him since he was still withdrawn. I was not impressed with this phone hearing and although the denial letter did not explain the reasons, I believe it is because she tricked my into saying we knew the employer hadn't responded when my son accepted benefits without letting me explain that we only knew that information much later.

    When he applied for the benefits he said he was terminated for unexcused absences. DOL claims they called and left a message they needed additional information. When Jimmie didn't call back, they granted him the benefits. Go figure. We assumed the employer had approved the benefits and there again, my son's withdrawal behavior was he could not even talk to family on the phone. Why would he call back a stranger when evidently they didn't need additional information after all?

    He was unsuccessfully going on job interviews when I finally got him into a doctor, who under treatment, has my son fully functioning again, phone calls, coming out of his room, not zoning out on the computer, etc. He has some good job prospects and now that we know how to respond with less detail about his previous employer he should be okay.

    It appears the system is biased towards the employer. The whole appeal process was explained in several pages of legaleze so we just missed the boat. I explained everything that was going on including the FMLA application, the documented leave, the previous supervisor's approval of absences, that his attendance was accepted, but it wasn't until he couldn't explain why he was still sick, that the new supervisor pulled the rug.

    It's really their loss because my son, when not sick, is very competent, highly intelligent, and very kind and pure of heart. If they had asked for another medical evaluation, they could have acted in everyone's best interest. It's just sad that he has to pay this money back for something the benefits appeal examiner was so hardnosed about and threw it all out based on we didn't present it while the employer was on the phone.


    My daughter was injured in March and that is another story...a gas can exploded on her and she was life flighted to Utah. My insurance paid all of life flight because they paid the hospital claim first leaving us owing several thousand there, even though we have a membership with Life Flight that guarantees no out of pocket expenses. We lost those appeals because Blue Cross insists they got the Utah hospital bill on the day Blue Cross of Utah received it -not possible- which was one day earlier than the life flight bill.

    These appeal examiners make no sense to me and are costing us thousands of dollars. Although Utah Hospital gave us a charity waiver -my daughter is a 22 year old student- for the amount I feel my insurance owes, I tried two appeals for the principle of the thing but then gave up. What part of "you -Blue Cross of Idaho -couldn't have received the Utah Hospital bill on the same date Blue Cross of Utah received it, they told me they didn't send it to you for another 3 weeks" did the appeals examiner not understand. She still insists they got it on the earlier date. My out of pocket cap went towards the hospital instead of life flight where it would have been written off.
    Last edited by stacia stansell; 09-06-2006, 06:51 PM.

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  • rjc
    replied
    I am still somewhat confused.

    Nevertheless, you should seek counsel and appeal both of these issues.

    In regards to the overpayment matter, it is not the claimant's responsibility to know whether or not the employer has responded, but rather it is DOL's responsibility when making its determination. This should never be a reason to require a claimant to repay an overpayment.

    In regards to the hearing regarding the separation, you should take the next step, which is likely to file a complaint seeking judicial review in the court system. It is my experience, although not yet in Idaho, that Judges are more likely than not to provide a claimant with an opportunity to testify so long as some plausible reason is provided for his/her failure to testify at the hearing. Which begs the question: why did your son fail to participate?

    In fact, why did he not testify at the hearing concerning the overpayment?

    Leave a comment:


  • stacia stansell
    replied
    Idaho unemployment benefits

    What did the initial determination from the state find, ie, did it rule him eligible because there was no showing of deliberate misconduct?

    Did your employer file an appeal that resulted in a hearing? If so, what was the result?

    What exactly did the determination regarding overpayment state? Did your son appeal that ruling? If so, was there a hearing?
    Thank you so much for responding. The employer appealed the states determination that my son was eligible for benefits. They won based largely on my son did not (could not) participate in their phone hearing and give his side of the situation.

    When I found out what was going on I was able to meet the appeal deadline for both the overpayment and the benefits determination. We lost the benefits appeal -my note was the appeal and he hadn't been to the doctor yet. They said their misconduct ruling stands because we didn't give a reason for missing the phone hearing.

    The overpayment appeal was treated as a request for a hearing,but all they wanted to determine is if my son should have known he wasn't eligible for benefits. He didn't know but apparently I misunderstood the examiners question. She asked if we knew the employer had not originally responded. I said yes, but I only meant we knew after the employer appealed. We didn't know before he was granted benefits. She didn't ask me when we knew and based on that was her first question before even swearing me in and telling how the phone hearing worked I assume she based her decision on that answer. I thought it odd I had to interrupt her to ask does this mean I'm allowed to represent him, have we started yet, etc.?

    In that hearing I represented my son per the doctors and his permission, but lost it because they determined it wasn't their error in granting him benefits because he should have known he wasn't entitled to them.
    Last edited by stacia stansell; 09-05-2006, 08:21 PM.

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  • rjc
    replied
    Originally posted by cbg
    I'm guessing that since she posted on the Idaho forum, maybe she's in Idaho?
    I suppose I deserved that ...

    Leave a comment:


  • cbg
    replied
    I'm guessing that since she posted on the Idaho forum, maybe she's in Idaho?

    Leave a comment:


  • rjc
    replied
    Originally posted by stacia stansell
    Also, unemployment appeals have been unsuccessful to eliminate overpayment of benefts. Our state granted him unemployment but then determined he should have known he was not entitled to them. We thought the employer had responded, when they had not at first. In the June 2006 appeal, which the doctor gave me a note to represent my son, I agreed the employer hadn't responded at first, but did not add we only knew that afterwards. My son owes two months of unemployment benefits back received during the time from his termination and learning the employer disagreed with him receiving benefits.
    Quite honestly, this makes very little sense. Nevertheless, let me try to help because the rest of your post suggests to me that your son should have determined eligible to receive benefits.

    What state are you in?

    What did the initial determination from the state find, ie, did it rule him eligible because there was no showing of deliberate misconduct?

    Did your employer file an appeal that resulted in a hearing? If so, what was the result?

    What exactly did the determination regarding overpayment state? Did your son appeal that ruling? If so, was there a hearing?

    Leave a comment:


  • cbg
    replied
    You don't have to provide any details. You can tell a prospective employer that your job ended due to a medical condition that required you to be out of work more than the past employer was able to accomodate, but that the condition is now under control and you are now able to to take on the requirements of the job in question. That should be acceptable to most employers.

    Leave a comment:


  • stacia stansell
    replied
    explain medical issues

    How do I explain that the termination was for undiagnosed medical issues without giving medical details to new employer? Also, my supervisor up until November was aware of first illness, but had a doctor's release, but was aware of continuing pain from surgery so was accommodating absenses and tardies, besides he knew I had automated the only part of my job that had previously required normal attendance. THe first illness was documented and was the cause of the supervisor allowing unexcused absenses and tardies and I was not able to explain this to the new supervisor. Don't they have a requirement to get another doctor's release/medical evalution when they let me work with accommations knowing I was still dealing with the first medical issue? They and I would have discovered the second medical issue.

    I don't want my old job back and take full responsibility for losing it. I had missed 12 days in three months and was tardy 5 times. I had called in but didn't have a doctor's note, thinking they would request another one if they wanted it.

    The depression from the spontaneous pneumothorax surgery lingering pain made it easy to take advantage of the no doctors note so I hope to emphasis I was a good employee I until I had medical issues I have since dealt with. Thank you, I didn't mean to imply they are responsible for me not returning for medical care and now I know not to present it that way.
    Last edited by stacia stansell; 09-05-2006, 09:10 AM.

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  • cbg
    replied
    how can we eliminate a poor job reference from the old supervisor who claims a deriliction of job duties?

    You can't. Multiple courts have ruled that an employer is not responsible for accomodating a condition that they have not been advised of. If he was not diagnosed until May, and he had been termed several months before that, then even he didn't know of his condition - the employer certainly could not have been. And EVEN IF your son had known, applied for and been granted an accomodation, they do NOT have to accept more tardies and absences than the general employee population is permitted.

    Shouldn't the employer have reasonably suspected depression and questioned why the policy was not previously followed and then requested a medical evaluation rather than a confrontation on the phone?

    Of course not. They're not doctors. Why on earth should they be responsible for diagnosing his medical condition?

    Leave a comment:

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