tdiu Fired From Job, And What If I Win Arbitration?

[james f valdivia]

I was fired from my job of 16 years in 2-'05, and at the time I was 20% service connected. I immediately put in for upping the percentage, and since then I have been found to be 70% with 100% TDIU. My job was a union job, and the union has been fighting to get it back for me with 100% back pay.(Which right now is about 90K.) Has anyone ever been in or heard about a situation like this? I know I can't go back to the job I was doing, because I could tell that the job was becoming too hard for me. What I would like to have is the obvious, made whole and keep my VA benefits. If the job insists that I go back in order to get my back pay, would the VA take away my status if I just went back long enough to get the back pay and then quit? (before they fire me again?) Any counsel on this subject is appreciated. Thanks!

[Berta]

James- welcome to Hadit- the best place in town-

Since the VA found you unemployable- After the firing-

I would think that you would not be re-hired but still eligible for some back pay if this was a EEOC or ADA matter?

My husband -disabled vet-sued a company under the ADA-he had been laid off with some others but the Veterans Readjusment Act , and VEVRA Act, of 1974 specifically state that a veteran has the same re-hire rights as others-

they re-hired the vet (non-disabled) who had been hired after him-yet he was first in line for the re-hire.

He won under ADA- The company owed him over a year in back pay- BUT- due to the fact that he had a major stroke during that time (sec 1151) he was unemployable so they didnt have to give him his job back -as he could not do it anymore and the companys liability was for a much smaller length of time for back wages-due to his stroke.

The SSA however and the VA used the last date of his employment at the company for his EED for 100% SC PTSD.

Dont know what the union situation was- in your case but-

if one is employable with a date of unemployability- that is the date -after which- a company has no liability-wage wise-

does this help?

Is it an EEOC or ADA case ?

[james f valdivia]

James- welcome to Hadit- the best place in town-

Since the VA found you unemployable- After the firing-

I would think that you would not be re-hired but still eligible for some back pay if this was a EEOC or ADA matter?

My husband -disabled vet-sued a company under the ADA-he had been laid off with some others but the Veterans Readjusment Act , and VEVRA Act, of 1974 specifically state that a veteran has the same re-hire rights as others-

they re-hired the vet (non-disabled) who had been hired after him-yet he was first in line for the re-hire.

He won under ADA- The company owed him over a year in back pay- BUT- due to the fact that he had a major stroke during that time (sec 1151) he was unemployable so they didnt have to give him his job back -as he could not do it anymore and the companys liability was for a much smaller length of time for back wages-due to his stroke.

The SSA however and the VA used the last date of his employment at the company for his EED for 100% SC PTSD.

Dont know what the union situation was- in your case but-

if one is employable with a date of unemployability- that is the date -after which- a company has no liability-wage wise-

does this help?

Is it an EEOC or ADA case ?

Berta, thanks for your input. You gave me advice in the past that helped get me to where I am today with the Va. and I'm eternally grateful. No, my case is neither an EEOC nor an ADA case. It is strictly a case where my Union (CWA) and the company have an agreement (contract). The VA gradually upped my percentage of disability over the last 1 1/2 years, and the company knew that I had a disability incurred in the service, but they've never seemed to be much interested in it. My concern is that the VA will take away my TDIU status even if I have to just go back to my old job for a short while to get my back benefits. Any thoughts are appreciated. Thanks in advance.

[Berta]

OK -I get it now but don't have any good answer-but others will -I am sure-hope John King reads this -

James- why did they fire you and- do you really expect the union to succeed?

My brother had same problem- he got laid off, union felt it was unfair and wanted to fight for his job back, but he wanted to go on unemployment instead and find something else-

boy -an odd position to be in-

I thought I remembered you-thank you for those kind words-

I sure hope someone chips in here-it would be way above the national poverty level-if you go back-

and that is what could alter your TDIU status.

Were you possibly let go because of your disability?

Edited June 28, 2006 by Berta

[JR Reihs]

James,

I do not think you will have a big problem with that , as long as do not go back permanant.

I had SSDI and IU , and under the SSDI I was allowed to go back to work for 13 months to see if it was feasible before I was retired. I did this and the Va allowed it under the SSDI rule , after 12 months I left with a smile knowing I had made the right decision.

The DAV said they had never seen anyone try this using the SSDI rule but I was 90% at the time so I had very little to loose, and was only done to keep me from looking back any further.

I think for the most part you should not worry about it until you see how the Arbitrator rules and phrases his decision, it might be that you only need to return for one day , and then tell them to bugger off.

[james f valdivia]

OK -I get it now but don't have any good answer-but others will -I am sure-hope John King reads this -

James- why did they fire you and- do you really expect the union to succeed?

My brother had same problem- he got laid off, union felt it was unfair and wanted to fight for his job back, but he wanted to go on unemployment instead and find something else-

boy -an odd position to be in-

I thought I remembered you-thank you for those kind words-

I sure hope someone chips in here-it would be way above the national poverty level-if you go back-

and that is what could alter your TDIU status.

Were you possibly let go because of your disability?

[/quote

I was fired because I didn't follow procedures and the company claims they asked me about it and I lied. The truth is that I didn't follow procedures and I never lied about it. The union and myself went through arbitration in front of a judge, and I think I proved I was telling the truth and the company went overboard by firing me after 16 years of service, rather than more training and some type of penalty. The existance of my disability having an effect on my job performance was never an issue, although I truly believe that my job performance suffered increasingly over the years as my disability became worse. The judge is scheduled to rule on my case within the next two weeks, and if his decision is favorable, i'll have some decisions to make. I know I can't perform the duties required for the positon because of the increasing severity of my disabilities, so I won't do anything to jeopardize my status with the VA, however, I'm looking at a healthy chunck of change, and i'd like to get as much of it as i'm found to be entitled to. Again, thanks in advance for any help anyone can give in this matter.

[james f valdivia]

James,

I do not think you will have a big problem with that , as long as do not go back permanant.

I had SSDI and IU , and under the SSDI I was allowed to go back to work for 13 months to see if it was feasible before I was retired. I did this and the Va allowed it under the SSDI rule , after 12 months I left with a smile knowing I had made the right decision.

The DAV said they had never seen anyone try this using the SSDI rule but I was 90% at the time so I had very little to loose, and was only done to keep me from looking back any further.

I think for the most part you should not worry about it until you see how the Arbitrator rules and phrases his decision, it might be that you only need to return for one day , and then tell them to bugger off.

JH, I'm curious to know if the VA and SSA sent you your compensation and disability checks @ 100% while you were working those 12 months?