320 Definition of "serious health condition"

Where the side effects of a medication prescribed for the treatment of a medical condition render an individual unable to perform his job duties, this is tantamount to the medical condition itself rendering the individual unable to perform his job duties. The fact that the side effects which resulted from taking prescribed medication for a medical condition caused the Complainant to be unavailable for work (rather than the unavailability for work being caused by the medical condition itself) did not deprive the Complainant in this case from coverage under sec. 103.10, Stats. Rothe v. Oshkosh Truck Corp. (ALJ Decision, 01/30/08).

A Respondent’s claims manager denied the Complainant’s requests for leave. The claims manager had a paramedic license and fifteen years of experience in occupational medicine. However, there was no evidence that the claims manager was qualified to give the type of “second medical opinion” a Respondent is authorized to seek under sec. 103.10(7)(c), Stats. Rothe v. Oshkosh Truck Corp. (ALJ Decision, 01/30/08).

For an employer to ignore the options of obtaining a health care certification or to seek a second opinion and to deny a leave request based on its own doubts about the medical necessity for the leave, puts the employer at risk of being in violation of the Wisconsin Family and Medical Leave Act, if at a later hearing the employee presents sufficient evidence of the medical necessity for the leave. Burton v. UW Hosp. & Clinics (ALJ Decision, 11/30/07).

The Wisconsin Family and Medical Leave Act does not provide detailed guidance on what kind of care qualifies as care for a spouse with a serious health condition entitling an employee to take family leave. However, the Act should be liberally construed because it is remedial in nature. In this case, a physician indicated that the Complainant’s husband needed assistance for transportation to receive medical care. Construing the term “care” liberally, transporting someone who cannot transport himself so that that person can get medical treatment is itself a form of care. Therefore, the Complainant was entitled to take family leave. Weekes v. Verizon (ALJ Decision, 05/31/07).

An employer has the right to require medical certification under the Wisconsin Family and Medical Leave Act. When the Complainant provides such certification, the employer has a choice of either: (1) accepting the medical opinion and granting the leave; (2) asking the medical provider or the employee for clarification (if they clearly tell the employee what needs clarification); (3) getting a second opinion at their own expense to challenge the expert medical opinion; or (4) having a lay person review the document to determine if the request for leave substantiates a right to that leave under the Family and Medical Leave Act. A Respondent taking this last option does so at its own peril. A Respondent cannot develop simple rules and apply them to cases irrespective of the medical evidence presented. Each case must be considered on its own merits, with due consideration to the medical opinions expressed in the health care provider certification. In this case, the certification forms from the Complainant’s physician clearly showed that the Complainant was entitled to medical leave under the law. The Respondent’s lay suspicions and opinions were not credible evidence on the issue of medical necessity or serious health condition. Harvot v. Hoffmaster Solo Cup (ALJ decision, 11/03/06).

The Respondent had the right to request a second medical opinion at its own cost, but it never requested a second opinion in this case. Absent that second opinion, when the medical evidence offered by the Complainant provided sufficient proof of a serious health condition, the Respondent could not simply claim not to believe that medical evidence and deny the Complainant his rights under the Wisconsin Family and Medical Leave Act. Further, while the law requires continuing care for outpatient care, it does not impose a requirement of “recent” care, nor does it place any time limitation on the continuing care as the Respondent in this case did. While most often the continuing care will be recent, there are circumstances where the condition is chronic and is monitored regularly with continuing care that is not closely connected with the employee’s absence from work. That absence can still qualify for family leave. Biscontine v. County of Milwaukee (ALJ Decision, 10/07/04).

The Complainant’s kidney infection was serious under any commonly understood meaning of the word “serious.” If left untreated, the consequences could very well be life-threatening. However, the term “serious health condition” has been defined as meaning a direct, continuous and firsthand contact by a healthcare provider subsequent to the initial outpatient contact. That did not happen here. The Complainant went to the doctor, who prescribed medication. She was not required to return. Accordingly, the Complainant did not suffer from a serious health condition within the meaning of the Family and Medical Leave Act. Fuchs v. Semling-Menke (ALJ Decision, 09/29/03).

Expert medical opinion is not required under the WFMLA for purposes of showing that an employee’s serious health condition prevented the employee from being able to perform his or her job. A physical condition, such as the recurrent back pain at issue in this particular case, can have overt manifestations that are easily identifiable by laypersons. The Complainant testified credibly that during her episodes of back pain she experienced severe pain when she engaged in the kind of physical activities that she performed on the job, including standing, walking, bending and lifting. Her testimony in that regard was corroborated by her physician’s medical excuses and certification form. This was sufficient proof of the Complainant’s disabling back condition. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

Sec. 103.10(4)(a), Stats., states that “an employee who has a serious health condition. . .may take medical leave,” and sec. 103.10(4)(b), Stats., states that “[n]o employee may take more than 2 weeks of medical leave. . .” (Emphasis added). By contrast, paragraph 103.10(4)(c), Stats., states that “[a]n employee may schedule medical leave as medically necessary.” (Emphasis added). The difference in terminology is significant. The use of the word “schedule” suggests that that statutory provision was intended to apply only to situations where an employee is asking to take leave for scheduled or planned medical treatment, not to cases where leave is requested, after the fact, for an absence that arose due to an unplanned medical situation. By contrast, the statutory provisions which refer to the “taking” of leave and make no reference to “scheduled” or “planned” leave, seem to apply more broadly to any type of medical leave, regardless of whether it was planned or unplanned. In this case, the issue of whether the Complainant “scheduled” her leave as “medically necessary” did not arise because this case involved a request for leave made after an unplanned medical situation (i.e., a flare-up of back pain that made the Complainant temporarily unable to perform her job duties). Therefore, the requirement in sec. 103.10(4)(c), Stats., that employees “schedule” leave as “medically necessary” is not applicable to the facts of this case. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

The Administrative Law Judge concluded that the evidence did not support a finding that the Complainant had a serious health condition where the only evidence regarding her health condition came from the Complainant’s testimony. The Complainant is not a medical expert and is not competent to diagnose that she had a urinary tract infection. Her testimony was unreliable hearsay. There was no competent evidence to establish the reasons for the Complainant’s doctor’s visits, that the two doctor’s visits were related, or even that the Complainant’s medical condition on the days in question made her unable to work. Reinke v. Oshkosh Coil Spring (ALJ Decision, 03/27/03).

The Complainant established that he had a disabling condition. The Respondent contended that the condition did not constitute a serious health condition because it did not require direct, continuous and firsthand contact by a healthcare provider subsequent to the initial outpatient contact. The Complainant was released to return to work after his initial outpatient care. However, he did need to have his stitches removed as part of the continuing care and treatment of his wounds. The single follow-up care visit required by the stitches was sufficient to qualify this as continuous care. These facts establish that the Complainant had a serious health condition within the meaning of the Wisconsin Family and Medical Leave Law. Hornes v. Great Northern Corp. (ALJ Decision, 02/06/03).

No medical expert testimony was required to establish that the Complainant's serious health condition interfered with her ability to perform her work duties because there existed outward or overt manifestations of that fact that were easily recognizable by lay persons. However, expert medical testimony was necessary to establish that her leave was medically necessary because her serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave. (In this case, the Complainant had requested one week of medical leave on the suggestion of her physician, who was providing her psychiatric care for depression.) Sieger v. Wis. Pers. Comm'n, 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).

Routine preventative visits after a mastectomy are covered as medical leave. Wis. Gas Co. v. DILHR (Milwaukee Co. Cir. Ct., 01/05/94).

Ongoing pregnancy satisfies the definition of "serious health condition" because it is a physical condition requiring outpatient care both before and after birth. Morning sickness, as a symptom of pregnancy, may be considered a "serious health condition" within the meaning of the Family and Medical Leave Act. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

In order for a serious health condition to be "disabling", it should fall within the dictionary definition which includes incapacitation or the inability to pursue an occupation or perform services for wages because of physical or mental impairment. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The term "continuing treatment or supervision by a health care provider" contemplates direct, continuous and first-hand contact by a health care provider subsequent to the initial outpatient contact. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant did not have a serious health condition where she: (1) experienced difficulty in breathing, (2) was taken to the hospital emergency room, (3) was treated for bronchitis, (4) was released the same day after an unspecified amount of time, and (5) was not told to return for a follow-up visit. The Complainant's condition did not call for outpatient care that required continuing treatment or supervision by a health care provider and her absence from work on this occasion was not covered by the Act. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant's five-year-old son had a serious health condition where he was kept under observation for six hours in the emergency room after suffering a concussion. This was outpatient care that required continuing treatment or supervision by a health care provider entitling the Complainant to take family leave under the Act. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant's daughter suffered from a serious health condition when she was hospitalized overnight and part of the following day for high fever and dehydration. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).