Termination for Disability Illegal

Sacramento, CA"Millions of people that innocently buy long term disability insurance through their workplace need to know how insurance companies profit from the misery of others," says Lana Milligan, "and at the same time, have it sanctioned by acts of Congress and our courts."

"My insurance company, Aetna, refused to pay me long term disability. I've spent the past three years dealing with Aetna and I still can't believe this is happening in the USA! I have a great deal of documentation showing abusive treatment at the hands of Aetna; evidence that I believe consitutes fraud.

I know this is a very complicated subject (unnecessarily complicated by ERISA law). What I can tell you in one interview only scratches the surface. This has been difficult enough for me, so can you imagine what a disabled individual goes through trying to navigate an ERISA minefield?

In August 2002, I was on temporary short-term disability from Burger King, my employer. Subsequent to what I thought would be a minor operation and short-term leave, I had complications that rendered me unable to perform most of my duties at work. In my doctor's report to Aetna, a daily functional activity form had to be completed and it was determined that I was unable to work more than four hours per day in any activity.

I managed to return to work in October 2002 but I was still unable to perform 100 percent: I am a construction manager and this involved a lot of travel, climbing on roofs, over and under buildings to inspect construction in progress. My accident had injured my upper torso and I wasn't even able to fully perform my desk work.

Upon my return to work, the daily function report was requested by Aetna. My employer began to give me a hard time, insisting that I exceed my doctor's limitations. Because Aetna administers short-term disability, I wrote both Aetna and Burger King, telling them to stop insisting that I exceed these limitations.

This banter went back and forth until November when I received a letter from Aetna saying that my case was closed because Burger King had told them that they were 'accommodating my doctor's limitations' meaning that my continuing claim was not denied and if Burger King decides at a future date they will no longer accommodate, I would be eligible for full disability benefits.

This meant that I either work with very limited capacity or claim long term disability until I can work to full capacity. Burger King refused.

The waiting period for long term disability was six months -February 9, 2003. In January 2003 Burger King sent me notice that they would no longer accommodate my disability (I am still working 2-4 hours, sometimes 8 hours a day) and that I contact Aetna regarding continued disability payments. At about the same time, Burger King also informed me that they were eliminating my position and transferring it to Seattle. In other words, this was their way out.

Termination for disability is illegal.
I filed a complaint with the Department of Fair Housing and Employment and obtained a Right to Sue letter from the State of California for discrimination based on a disability. In California, before you can sue, you must obtain a Right to Sue letter, which in my case was addressed to Burger King, stating that I have the right to sue them in civil court for discrimination.

Burger King received the letter just before they told me that my position would be eliminated and transferred to Seattle. I believe this was retaliation for filing a complaint. About the same time, I got a letter from Burger King telling me to contact Aetna, admitting I was disabled. Because Burger King was fearful of an employment discrimination lawsuit, we negotiated a settlement for an unspecified amount - I have a gag order so I cannot disclose the amount.

I stopped working on February 2nd. Aetna refused to respond to any letters or calls from me. I was not aware of ERISA (federal law) and I requested assistance from the State Department of Insurance. They shipped my claim to the Florida regulators, where Burger King HQ is located. The claims administrator in Florida explained to me that most insurance purchased under an employer comes under federal ERISA law and is generally exempt from the state law.

Furthermore, they are not allowed to investigate a claim that was exempt from state law under ERISA, whether it is true or not. In other words, they cannot even investigate the truth of a claim.

She did tell me that Aetna was exempt under ERISA. She wrote Aetna a letter and they responded by falsely claiming that they were only the administrator of a self-insured plan, when in fact they were the administrator of a plan fully insured by Aetna. They lied.

I was then sent to the Department of Labor, that supposedly regulates insurance sold through the workplace, only to find that the department has no enforcement powers and the insurance company response was strictly voluntary. Insurance companies are completely unregulated.

I filed a lawsuit with ERISA through an attorney, an ERISA specialist. After two years, the attorney helped me to obtain a portion of my benefits due. However, in response to a complaint for underpayment of benefits per the terms of the plan sent to me in 2002, Aetna denied the benefits and sent a revised plan that changed the language from the original plan in 2002. The second version of the amended plan had the same issue dates and effective dates as the first plan sent to me. In other words, they had changed the wording to disqualify me.

So how can they get away with it? In 1997 the Department of Labor no longer required the insurance company to file a public copy of the original plan. So they were able to send the amended plan. By altering the original plan, they are guilty of fraud.

Insurance companies such as Aetna, UnumProvident and others can (generally) claim "ERISA" protection to sell insurance through the work-place without regulatory oversight and cheat without penalty; this affects millions of American workers; I am actually one of the luckier victims! Others loose their homes, medical insurance, even end up living in their cars due to outrageous and lengthy and delays for withholding valid claims under ERISA!

If I did such a thing, I would be fined and jailed for insurance fraud and mail fraud but no penalties are assessed against Aetna. There are two standards of crime and punishment for fraud: one for wealthy corporations, another for a common insurance beneficiary like me.