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Virginia Journal of Education


Clearing the Air



A Chesapeake teacher, with VEA’s help, fights for—and gets—long-overdue VRS benefits.

By Tom Allen

Everyone knew Darlene Harmon, Chesapeake’s 2010 Secondary Teacher of the Year and a 25-year classroom veteran, was way too sick to still be effective in the classroom.

Her school administrators knew it. After watching her struggle to function while tethered to an oxygen machine, they regretfully went along with her decision to take disability retirement.

Her colleagues knew it. “She had been one of the best teachers in our building,” wrote one co-worker, in support of Harmon’s disability retirement application. “Now she is physically unable to do her basic job, let alone all the extras she once did.”

Her students knew it. “Their attention was always on taking care of me, not on their real business,” says Harmon. “My oxygen machine would be making noises, sometimes I’d run out of oxygen, and I was completely exhausted, all the time.”

Her doctors knew it. Three separate physicians submitted written opinions backing Harmon’s case for disability benefits after she’d been hospitalized 19 times in 18 months, calling her “permanently totally disabled.”

The only people who didn’t seem to know it worked for the Virginia Retirement System. Three times they denied Harmon’s application for disability retirement, leaving her without an income for almost two years, during which she lost her home and her life savings.

It wasn’t until January 2013, after the intervention of VEA’s legal staff, that Harmon got the benefits—retroactively—she’d deserved all along.

The breakthrough came during a phone conversation a frustrated Harmon had with a VRS employee after the second denial. “Are you all just waiting for me to die?” Harmon asked. In response, the employee asked if she could speak to Harmon “off the record.” Harmon agreed, and the employee asked if she was a VEA member.

Harmon, a special education teacher at Oscar Smith High School, had been in the Association for her entire teaching career, and said so. “You need to contact them,” the VRS employee replied.

“It was like a light bulb went off in my head,” Harmon says. “I had been doing all this alone. I couldn’t afford to pay for a lawyer. When you’re sick, you don’t think straight. So, right away I called VEA and they took it from there. Their first reaction was to ask me why I’d taken so long.”

VRS rejected Harmon’s disability applications because, while it was obvious that her condition was deteriorating, no one was sure exactly what was wrong. All doctors could tell her at first was that she had severe asthma.

She knew it was more than that. “Why did I have to keep going into the hospital?” she asks. “The people I know with asthma live their lives and use an inhaler.”

Harmon’s health began spiraling downward in late 2010, when she began not feeling well while attending an Oscar Smith basketball game. She made it home, but she was having such difficulty breathing that her family took her to the emergency room. Doctors told her she had pneumonia, gave her medication, and told her to come back in 10 days for a chest X-ray.

On the way to the doctor’s office for that X-ray, Harmon was still having such trouble filling her lungs that she put her head “outside the car window, like a dog” to get some air. Her doctor didn’t like what he saw when she arrived at his office and sent her directly to the hospital, where she remained for 10 days, including Christmas, receiving breathing treatments. Again, she was told she had severe asthma.

Determined to get back to school, Harmon managed to return to the classroom in mid-January 2011, only to get a call from her pulmonologist shortly thereafter, asking her to come in for one more test.

“It was a walking test,” Harmon says, “and after just two or three steps, my oxygen level was already in the ‘danger’ range.”

She began using supplemental oxygen round-the-clock. The Oscar Smith staff did everything it could to help her, including giving her a new parking spot close to the front door, toting her oxygen machine and tanks into her classroom for her, and allowing her to teach only on the first floor. But it soon became clear that even that wasn’t enough.

Not long after, her doctors recommended that she step down. VRS proceeded to deny Harmon’s initial application for disability retirement, and then her first appeal. Her doctors, still unable to diagnose anything more than asthma, sent Harmon to Duke University’s hospital for a lung biopsy in November 2011.

The medical staff there finally figured out what was making life so incredibly difficult for Harmon, using the biopsy results to diagnose a condition called chronic lymphocytic bronchiolitis. Sadly, receiving the diagnosis did not set Harmon’s healing in motion—both the cause and cure of the condition are currently unknown.

Diagnosis in hand, Harmon filed her second VRS appeal, now with VEA’s help. Once again, despite now being confined to a wheelchair, she was denied.

“I was in a state of shock,” she says. “I cried and cried. I thought now that they knew my diagnosis, what more could they want?”

VEA legal staff reassured her, telling her that this decision had not been entirely unexpected and that it would serve as a good launching point for making Harmon’s case at the final appeal level before a hearing officer. VEA attorneys, aided by the testimony of several of Harmon’s colleagues and three family members, along with the reports from the three physicians, made it clear to the hearing officer that Harmon fully met every legal (and common-sense) definition of disability.

Several months later, when the officer’s report came down, it was 14 pages long, including a final paragraph that included, “There is abundant and convincing…evidence of Ms. Harmon’s pulmonary disease and the respiratory insufficiency that result from it.” In the rest of the paragraph, the hearing officer also mentioned Harmon’s “obvious poor state of health”—and awarded her full disability retirement benefits.

She got the news in a conference call with the VEA legal team. “It was one of the happiest days of my life,” she says.

And she knows that day would never have come without the Association’s help. “I would not have had the same results without VEA,” Harmon says. “They really took the burden off me. I became a member as a beginning teacher to protect myself—I never thought about how it might help if I lost my health. But now I know that anything can happen at any time, and you’re going to need their help.”

The value of Association membership is now a point she’s eager to make to her colleagues, near and far. “You need to be a member,” she says, “and if my health will allow it, I’m going to let people know that.”

For now, Harmon remains focused on learning to live with her bronchiolitis, which will probably land her on a list soon for a double-lung transplant.

She’ll also be settling into her new home. When she learned that she’d been awarded her retirement benefits, she smiles broadly and says, “The very next day we put a contract on a house.”

Allen is the editor of the Virginia Journal of Education.

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VEA Legal Services and You

To educators who read Darlene Harmon’s story and think to themselves, “Well, that’s an extreme case. I’ll certainly never need that kind of help,” VEA legal services director Dena Rosenkrantz can only smile and say, “I hope you’re right.”

Indeed, most VEA members will not be diagnosed with bronchiolitis and end up on oxygen and in a wheelchair. However, information and advice from VEA staff and lawyers can help with health-related employment questions such as medical leave, workplace accommodations or retirement for permanent disability. And health issues are just a very small part of the help that’s available from VEA.

VEA members get help from VEA staff with questions about all aspects of school employment:
•         A transfer within your school division;
•         Change in your grade or teaching assignment;
•         Review and response to evaluation;
•         Dealing with difficult behavior (by students, parents, colleagues and administrators);
•         Work schedules and conditions;
•         Moving to another school division;
•         Workplace injury or safety;

Many school employees, including lots who “never thought it could happen to me,” will need  an Association attorney:
•         To defend a social services investigation;
•         To defend criminal charges;
•         To defend school employment.  

Whatever your situation, Rosenkrantz urges you to make your local UniServ office your first call—don’t take months to pick up your phone, as Harmon did. Fortunately for her, her call didn’t come too late.
               
“We can be a source of information on a wide range of workplace issues,” says Rosenkrantz,. You can get solid information from your school division’s human resources office, but there are times when you want information and advice from outside source, or you aren’t ready to share plans with your employer quite yet.  
               
Of course, in addition to being able to have the ear of VEA staff and reach an Association attorney, VEA membership also provides you with the Educators Employment Liability (EEL) insurance plan, providing secondary coverage to defend actions in school employment in a civil suit, and to cover damages assessed against you in such suits. If you successfully defend a criminal charge involving actions in school employment, you can recover up to $35,000 for attorneys fees and costs.  

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They Had Her Back

Several of Darlene Harmon’s teaching colleagues stood up for her during her appeals process, testifying before a fact-finding officer about the excellence of her teaching prior to her illness and how dramatically she was affected by her health.

“She was a teacher’s teacher,” Tamika Davidson, an Oscar Smith teacher and CEA member, said at the VRS hearing. “She was one that could come into any classroom and be able to captivate everyone’s attention. She doesn’t believe in sitting behind a desk to teach. She’s a hands-on teacher.”

Davidson, a colleague of Harmon’s for 10 years, noted that things changed drastically after Harmon became ill. “Her spirit was broken,” she said. “This was her calling, what she is supposed to do.”

Dependent on an oxygen tank and unable to move much or leave her classroom, “There was no way she could teach,” Davidson said. “She’s unable to write. She has a hard time recalling facts, and that’s impossible—you can’t do that when you’re trying to educate someone.”

Fellow Oscar Smith teacher Sharon Willis agreed. “She was a mover and a shaker,” she testified. “She showed us how to be better teachers. She didn’t know it, but she became my mentor.”

Willis, also a CEA member, watched helplessly as her mentor struggled, and testified about Harmon laboring just to get into the building each morning, other teachers writing her lessons on her blackboard for her, people running errands in the building for her, the negative impact on her students, and Harmon’s own depression, brought on by her health problems.

“It’s heartbreaking to see her health where it is,” Willis said.

“I think it’s testimony to what a wonderful person Ms. Harmon is that we have her colleagues sitting around for hours to make sure you know that she can no longer teach,” VEA attorney Milton Brown said in his closing statement at the hearing.
 
It’s also a strong testimony to the power of the truth.
 


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