Court Allows Non-Medical Evidence in Medical Leave Claim Case

The Ninth Circuit Court of Appeals has affirmed the right of employers to use non-medical evidence to challenge a medical leave claim filed under the Family Medical Leave Act (FMLA), as the law firm Atkinson, Andelson, Loya, Ruud & Romo writes on its website.

It’s likely the decision also applies to the California Family Rights Act (the CFRA), which is modeled after the FMLA, the firm writes. Both laws, the writers explain, enable the employer to challenge a medical determination. The employer can require the employee to get a second medical opinion, at the employer’s expense. If the second opinion disagrees with the first, the employer is required to get a third opinion to break the tie.

However, in Perez v. Barrick Goldstrike Mines, Inc., the employer’s challenge was based not on another medical opinion, but rather on a private investigator’s report that the employer had commissioned.

The employee, an underground truck driver, said he was injured when the truck hit the wall of the mine where he worked. But the investigation found a lack of evidence of any impact with the mine’s wall. It also included a statement from another employee saying that the driver had faked the injury so he could work at his side-business of running rental properties. The investigation concluded that Perez was performing tasks at his side job that were “inconsistent” with the requested leave, like driving and heavy physical labor, the firm writes.

Based on the investigator’s report and without a second medical opinion, the employee was fired. He then sued the company. The jury in the district court, on the basis of the non-medical evidence that had been presented, found the employee did not make a case that he had suffered a serious condition that prevented him from performing his job and justified his medical leave claim.

In his appeal, the employee argued unsuccessfully that the district court had erred by not telling the jury it could consider only contrary medical evidence to counter a medical determination in the employee’s favor.

“The impact of Perez,” the article concludes, “means employers may dispute the existence of a doctor-certified medical condition through non-medical evidence.”