Pension & Benefits News Employee’s failure to show she made periodic visits to doctor for PTSD doomed FMLA interference claim
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Monday, October 15, 2018

Employee’s failure to show she made periodic visits to doctor for PTSD doomed FMLA interference claim

By Pension and Benefits Editorial Staff

An employee who suffered from post-traumatic stress disorder (PTSD) could not advance her lawsuit asserting that her employer interfered with her FMLA rights when it fired her for job abandonment since she failed to demonstrate that she suffered from a chronic health condition entitling her to FMLA leave. While PTSD may continue over an extended period of time and cause episodic rather than a continuing period of incapacity, she failed to demonstrate that she made periodic (twice a year) visits to a health care provider, a federal court in Pennsylvania ruled in granting the employer’s motion for summary judgment.

Shooting triggered PTSD. The employee, a veteran who served in the Marine Corps and suffered from PTSD, was hired as an employment specialist for Blind and Vision Rehabilitation Services of Pittsburgh (BVRS) in June 2014. Her PTSD symptoms were triggered around a year later after an unknown individual fired multiple bullets at her car while she was driving. Her tires were shot, her window was shattered, and a bullet lodged itself into the driver’s side headrest, barely missing her. Afterwards, she struggled to function in her daily life, was afraid to leave her home, and had trouble concentrating at work.

Unsatisfactory performance. After about another year passed, in early June 2016, management learned that the employee had been submitting inaccurate client information for financial reimbursement of services rendered. On June 22, she was issued a warning and instruct to provide documentation by the end of the day. After she failed to provide the documentation, she received another write-up and was instructed to report to work to catch up on paperwork. Her supervisor also advised her that a vocational rehabilitation counselor had requested not to work with her and expressed concern that this was the third type of request that month.

A week later, the employee still had not completed the backlogged paperwork. Her supervisor sent her multiple emails reminding her to report to work at 8:00 a.m. on July 5, but she failed to report as directed. Her supervisor sent her multiple emails that morning, to which she responded that she was having a "mental health emergency." She also provided the name and phone number of her doctor and stated that she would be providing the appropriate medical documentation.

Doctor’s note. Her doctor sent a letter the following day stating that the employee was being treated for PTSD and would be able to return to work without restrictions on Thursday, July 7. The letter also included a list of suggested accommodations. The employee claimed that she had been receiving treatment from the doctor for around seven years. Though she initially saw the doctor once a week, after beginning a course of medication she only saw her as needed.

Didn’t come to work. The employee missed work on July 7 and July 8 without calling in. She also missed work on Monday, July 11, but did call her supervisor to ask where she needed to report for work on the following day since the agency had recently relocated to a new building. She did report to work on July 12 but did not arrive until midday. She then missed work again on July 13 without calling in. She was also absent July 14 but emailed her supervisor that morning stating that she was not feeling well and would be working from home that day. After she missed several more days of work, she was terminated for job abandonment.

No continuing treatment. The court tossed the employee’s FMLA interference claim based on her failure to demonstrate that she suffered from a serious health condition entitling her to FMLA leave. A serious health condition is defined as "an illness, injury, impairment, or physical or mental condition" which involves either "inpatient care in a hospital, hospice, or residential medical care facility" or "continuing treatment by a health care provider." Because there was clearly no indication that the employee was incapacitated or had an overnight stay in any type of medical facility, at issue was whether she had been receiving continuing treatment.

To show continuing treatment, the employee was required to present evidence that she suffered from a chronic condition. A chronic condition is defined as one that (1) requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) continues over an extended period; and (3) may cause episodic rather than a continuing period of incapacity. The employee failed to meet all three of these requirements. While PTSD may be deemed a condition that can continue over an extended period and may cause episodic rather than a continuing period of incapacity, she failed to demonstrate that she made periodic (twice a year) visits to a health care provider. Rather, while she testified that she had been seeing her doctor for about seven years, there was no indication that she still visited her on a regular basis, if at all.

Indeed, during the time in question, the employee admittedly only saw the doctor when she felt it was necessary and could not even recall whether she went to see the doctor (or merely called her) on July 5, the day of her mental health emergency. And while she also stated that she went to walk-in clinics, she gave no indication as to how often she did so. Finally, she could not recall the name of the other doctor she allegedly saw or how often she had seen him or her.

Because there was thus insufficient evidence to show she visited a health care provider twice a year for treatment, the employee failed to show she was entitled to FMLA leave.

SOURCE: Watkins v. Blind and Vision Rehabilitation Services of Pittsburgh, (W.D. Pa.), No. 2:16-cv-01850-DSC, September 19, 2018.

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