Court erred in finding benign mass on foot could not be ‘serious health condition’ under FMLA

Post-operative appointments for wound care constituted “continuing treatment” of an employee’s benign growth on her foot, which was surgically removed, held the Second Circuit. Vacating summary judgment against her claim that she was fired in retaliation for taking FMLA leave, the appeals court also found that her employer failed to prove her condition did not involve at least three consecutive days of incapacity absent medical treatment. The fact that she worked until the day of her surgery was not dispositive because she and her doctor viewed the condition as worsening. The court remanded so the district court could address the employer’s other arguments.

Benign mass.

For 13 years, the employee was a hospital medical records clerk, spending most of her day standing and walking. In early 2013, she noticed a growth on her left foot, which became increasingly painful and allegedly limited her ability to do her job. On March 19, her podiatrist diagnosed her with a benign mass and scheduled surgery for March 28. The doctor later testified that surgery was immediately necessary and the growth needed urgent care because of the increasing pain, the obstruction of the employee’s function, and the possibility that the growth might be precancerous. He acknowledged the condition was not life-threatening, so could have been delayed 30 days, but opined that, once the employee rejected conservative treatment, surgery was necessary and he “wanted to do it as soon as [he] could” to alleviate her pain.

Fired for taking medical leave.

When the employee contacted human resources to notify them of her surgery, HR informed her that she needed to provide 30 days’ notice for foreseeable medical leave. The HR department also faxed the podiatrist to ask that the surgery be delayed until April 19 at the earliest. The hospital did not ask the employee to submit to an independent exam for a second opinion. Ignoring the 30-day policy, the employee had the surgery. She worked through the day before her surgery, though she claimed she was in considerable pain, making it hard to do her job. The hospital disputed this, noting she didn’t exhibit difficulty or request an accommodation. The hospital fired her for taking leave after being denied approval.

Post-op medical appointments.

According to the March 28 post-operation report, the podiatrist removed the growth on the employee’s foot. He told her to wear a surgical shoe, and prescribed pain killers and antibiotics. He also instructed her to visit him in one week, at which time he changed the dressing on the wound. He had her return on April 13, when he removed the suture, again changed the dressing, and cleared the employee to return to work April 18.


In her subsequent FMLA retaliation suit, the hospital argued that the growth was not a “serious health condition” and the employee failed to give sufficient notice before taking leave. Granting summary judgment based on the first argument, the court found that she failed to show the growth on her foot was a “serious health condition” because she did not require inpatient care or continuing treatment by a health care provider.

Serious health condition?

On appeal, the parties disputed whether the employee had a serious health condition qualifying her for FMLA leave. Under the DOL regulation in dispute, a serious health condition is one requiring a period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider . . . for . . . A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment . . .”
As the appellate court understood it, the lower court viewed the employee’s condition as a growth on her foot, which was eliminated by the surgery, so her two post-surgical follow-up visits at which the wound was examined, dressing changed, and sutures removed did not constitute treatment of the growth, but rather treatment of the wound created by the surgery. This analysis, said the Second Circuit, “depended on an excessively narrow concept of ‘treatment’ that is not consistent with” DOL regulations on what constitutes continuing treatment for purposes of defining a ‘serious health condition.'”

Continuing treatment.

To the appeals court, there was “no reason why post-surgical change of dressing and removal of sutures does not qualify as part of the treatment of the condition that occasioned the surgery-at least if such postoperative treatment was medically predictable from the outset. The Hospital made no showing that such follow-up visits for treatment of [the employee’s] wound were not a routinely-expected, reasonably-required part of the surgical treatment of the growth.” Thus, for purposes of summary judgment, the employee satisfied 29 C.F.R. § 825.115(e)’s requirements of “[c]onditions requiring multiple treatments” and a “period of absence to receive multiple treatments.”

Period of incapacity.

The next question was whether her condition involved the required period of incapacity. As to this element, the appeals court found that the hospital failed to show the growth on the employee’s foot would not have likely resulted in three consecutive days of incapacity absent medical treatment. The fact that she worked up until the day before her surgery in spite of her pain did not warrant summary judgment because it did not alter the fact that both the employee and her doctor believed the growth and concomitant pain to be a growing condition. The hospital made no showing that the pain, as it worsened, would not have incapacitated the employee for at least three days. Summary judgment was therefore vacated.

Hospital not estopped from alternative arguments.

The case was remanded for the district court to consider the hospital’s alternate arguments for summary judgment. Though the employee argued that the employer was estopped from challenging her entitlement to FMLA leave because it did not require a second medical opinion, the regulation did not require a second opinion but instead states that an employer “may” require one. Nor was the employer estopped from challenging the adequacy of the employee’s notice of her need for FMLA leave. Though an administrative law judge, in upholding her unemployment benefits, found that she notified the hospital of her need for surgery “as soon as was practicable,” New York Labor Law provides that such decisions do not have preclusive effect in subsequent litigation.

SOURCE: Pollard v. The New York Methodist Hospital, (CA-2), No. 15-3231, June 30, 2017.
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