Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

?Honest suspicion? of fraud justified employers seeking a second opinion from a health care provider

?Honest suspicion? of fraud justified employers seeking a second opinion from a health care provider
Source: The FMLA Blog ? http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Kim Barnes was an unhappy employee as a result of the reclassification of her position and policy changes by LaPorte County, her employer. She voiced her unhappiness and intent on transferring to another department. She also began missing work more frequently. At the end of a two-week vacation Barnes faxed in a note from her doctor excusing her from work for an additional two weeks. As requested, Barnes submitted a completed WH-380 in support of her leave request due to stress and insomnia. Suspecting fraud, the County sent Barnes a letter notifying her that she needed to obtain a second medical opinion and that a doctor's appointment had been scheduled on her behalf. Barnes did not attend the scheduled appointment because she felt it was unjustified. Instead, she submitted another note from a nurse requesting additional leave. The County terminated Barnes for "continued absence from work." Barnes sued alleging violation of the FMLA. The County moved for summary judgment.

Barnes argued that the County did not have the right to require her to submit to a second health care opinion to verify her request for FMLA leave. The second health care opinion provider process, Barnes argued, was limited to verifying the initial certification and not to secure additional medical information. The court disagreed.

The court found that, under the facts, the County had an honest suspicion that Barnes' application for FMLA leave was not legitimate to justify its request for additional certification by an independent medical examiner. The County noted the frequency and timing of Barnes' absences; Barnes' known frustration regarding the policy changes; Barnes' repeated statements to her supervisor of her intention to leave her position; Barnes' efforts to clean out her desk prior to taking an extended leave of absence; the fact that the initial certification was the result of a telephone consultation; and the curious timing of her vague leave requests, being faxed on the last day of Barnes' vacation.

The court went on to find that Barnes forfeited her FMLA protections by failing to attend the second opinion appointment to certify her leave.

Mr. Bosland comments: The FMLA allows an employer who has reason to doubt the validity of a medical certification initially provided by the employee to obtain a second opinion at the employer's expense. The circumstances where an employee may have a reason to doubt the validity of the initial medical certification offered by an employee were not specified in the statute or the regulations.

Barnes' argument appears to be based on Albert v. Runyon, 6 F. Supp. 2d 57, 63-65 (D. Mass. 1998). In that case, the court rejected the employer's explanation that it needed a second health care opinion to independently assess the employee's medical condition. The Albert court observed:

Instead, the employer should determine whether the provided information demonstrates that the diagnosed condition is a serious health condition within the meaning of the FMLA.

The court in Albert observed that the second opinion process "does not contemplate an adversarial investigation into a patient's symptoms and complaints." It also noted that the employer failed to identify any deficiency with the initial certification, and that it failed to support its suspicion regarding the objectivity of the initial health care provider.

Here, the Barnes decision reads a reason to doubt the validity more expansively than does the Albert court. As in Albert, the County did not identify any deficiency with the initial medical certification. Unlike Albert, the record suggests that Barnes' initial health care provider may have failed to follow generally accepted treatment practices by certifying the condition based on a telephone consultation rather than as a result of an in-person physical examination. Critically, the court in Barnes looked to all of the surrounding circumstances, not just the contents of the certification, to determine whether the employer had a reason to doubt the validity of the initial certification.

Note that the court had no problem with the employer setting the appointment for the second health care opinion.

Full post as published by New York Public Personnel Law on January 08, 2009 (boomark / email).