Numerous Injuries Provide the Needed Disconnect For Employer to Prevail

John GarnerDMEC News

When Kansas City Freightliner Sales, Inc. (KCF) failed to reinstate his employment after taking time off for the diagnosis and treatment of a work related cervical spine injury, Donald Brown (Brown) sued his employer, alleging failure to reinstate and wrongful discharge under the Family and Medical Leave Act (FMLA).  Finding that Brown failed to provide adequate notice to his employer of the need for leave under the FMLA for the injury in question, the district court granted summary judgment to KCF.  The Court of Appeals for the Eighth Circuit agreed.

The case is Donald Brown vs. Kansas City Freightliner Sales, Inc.

Brown began working as a service technician for KCF in April, 2000.  In June 2007, Brown injured his back at work and was diagnosed with lumbar strain.  He was released back to work “without restrictions” by the occupational doctor on the same day.  In August, 2007 Brown again injured his back at work.  A written injury report was submitted to KCF diagnosing the injury once again as lumbar strain.  He was prescribed medication and released back to work immediately, but with certain “activity restrictions,” which was later amended to “work as tolerated” during a doctor visit on September 21, 2007.

Brown hurt his back again on September 26, 2007.  This time he verbally reported the incident to his supervisor and went home, without submitting a written injury report and refusing medical treatment.  Brown phoned into KCF on each day of his absence, but offered KCF no information on his condition.  When returning to work on October 3, 2007, KCF fired Brown, advising him that he had already used all of his authorized sick and vacation leave prior to this incident.

After being fired Brown made several doctors appointments, and after numerous tests was eventually diagnosed with an injury to cervical spine with numbness and tingling to his upper extremities, as well as degenerating and protruding cervical discs.  On April 25, 2008, he underwent surgery to correct the condition.  Brown sued KCF for failure to reinstate and wrongful discharge in violation of the FMLA.  The district court granted summary judgment in favor of KCF, finding that “Brown did not suffer from a serious health condition as defined by the FMLA and that he failed to give adequate notice to KCF that he was suffering from a serious health condition.”  Brown appealed.

Brown could have possibly seen a different outcome to his case had he received the medical treatment he needed when he hurt his back on September 26, 2007.  An injury report could have established entitlement under the FMLA, and determined the true nature of his condition at that time.  Unfortunately for Brown, he did not meet the required “standard for employees seeking to use FMLA leave for absences,” in his failure to do so.  Although Brown was in contact with his employer during his September 27 to October 2 absences, he failed “to provide the employer with a reason to differentiate the absence from ordinary sick days” which “proved fatal to his FMLA claim.”

The appeals court found nothing within Brown’s record that provided the needed connection between the lumbar and cervical impairments to assist the court to rule in Brown’s favor on this appeal.  The appeals court did acknowledge that Brown had two previous, documented back injuries, and subsequent to his September 27 to October 2 absence, went to several doctor appointments. However, they found no connection “between the prior back injuries-which were in the lumbar region-and the subsequent (unreported) back condition in the cervical spine area.”

The Court of Appeals for the Eighth Circuit affirmed summary judgment for KCF.

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