Lack of Expert Medical Evidence Dooms ADA Claim

By David Zwisler Jan 22, 2015

A plaintiff must do more than name a disability and assert limitations associated with the identified medical condition to establish that he or she is “disabled” under the Americans with Disabilities Act (ADA). Expert medical evidence is required, the 10th U.S. Circuit Court of Appeals ruled.

The City of Lakewood hired Cynthia Felkins in June 2008 as an emergency dispatcher, and in December 2008, she fractured her femur at work. In January 2009, Felkins presented two documents to the city: 1) a Family and Medical Leave Act (FMLA) form on which the health care provider stated that Felkins received hospital care but did not have a chronic condition and 2) a note releasing her to return to full duty on Jan. 7, 2009. Felkins returned to work in January using crutches or a wheelchair and was allowed to work shorter shifts due to her asserted ongoing pain and discomfort.

In late March, Felkins tripped over her dog and aggravated the femur injury, causing her to miss three days of work. In early April, Felkins sustained a broken pelvis in a car accident and missed two more days of work. From January through April, Felkins never worked a full shift.

After the car accident, the city assessed Felkins’ work history and determined that she had taken 466 hours of paid and unpaid leave during her first 10 months of employment. The city terminated Felkins for using an inordinate amount of leave and failing to demonstrate the ability to consistently report for her shifts.

Felkins sued the city, alleging that she had been discriminated against in violation of the ADA because the city failed to accommodate her disability: avascular necrosis. Avascular necrosis is a rare condition that can cause bone tissue to die from poor blood supply. Felkins asserted that the medical condition caused her femur fracture; complicated her surgery; and substantially affected her ability to lift, walk and stand. She also asserted that the condition substantially impaired her major bodily functions of normal cell growth and blood circulation.

The 10th Circuit affirmed the district court’s grant of summary judgment for the city and determined that Felkins had not established that she was “disabled” under the ADA. Initially, the court noted, the medical documentation submitted by Felkins stated that she did not suffer from a chronic condition; there was no medical evidence in the record that identified her condition as avascular necrosis. Absent medical documentation, the only evidence was Felkins’ assertions. Because she was not a trained medical professional, her opinions about the condition were insufficient to sustain the lawsuit.

The court acknowledged that Felkins could provide evidence about her injuries and symptoms and about her pain and difficulties with standing, walking and lifting. However, Felkins would not be allowed to self-diagnose those symptoms. Felkins would not be permitted to provide evidence about how avascular necrosis affected major life activities. Diagnosis and evidence related to the medical condition’s limitations on major life activities are “beyond the realm of common experience and ... require the special skill and knowledge of an expert witness.” Without competent, professional evidence to establish Felkins’ disability and substantiate substantial limitations on her major life activities, her claim failed.

Felkins v. The City of Lakewood, 10th Cir., No. 13-1415 (Dec. 19, 2014).

Professional Pointer: An employer must carefully review the documents provided by an employee to fully understand what it can or must do when confronted with an employee’s medical condition.

David Zwisler is an attorney in the Denver office of Ogletree Deakins, a labor and employment law firm representing management.


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