Americans With Disabilities Act Covers Type 2 Diabetic

An insulin-dependent type 2 diabetic, whose condition is so severe as to substantially limit his eating as compared with the general population, is covered by the Americans With Disabilities Act (ADA) the United States Court of Appeals for the Ninth Circuit has ruled in Rohr v. Salt River Agricultural District, No. 06-16527 (February 13, 2009). 

Larry Rohr was diagnosed with in 2000 with insulin-dependent type 2 diabetes. The diagnosis of Rohr’s diabetes inaugurated a lifetime regimen of insulin injections, medicine, blood tests, and a strict diet; the condition caused chronic high blood pressure, deteriorating vision, occasional loss of feeling in his hands and feet and made him quicker to tire. His high blood pressure also prevented him from passing an annual respirator certification, which was important to his job. As time went on, these symptoms became more severe. Eventually, Rohr’s condition led to a number of permanent work restrictions:

• no rotating shift work
• no more than 9 hour workday 
• limits on prolonged work in hot areas with little ventilation 
• no heavy exertional activities 
• no work from unprotected heights or unprotected climbing  
• carry with him at all times a sugar supply such as a sugar tablet 
• no out-of-town travel to avoid any dietary disruption   

Rohr’s employer became dissatisfied with these restrictions, determined that he could not perform the essential functions of his job and presented him with three options: (1) seek another position with the company; (2) apply for disability benefits; or, (3) take early retirement. Rohr opted to apply for disability benefits and filed a charge of discrimination with the Equal Employment Opportunity Commission. 

Diabetes is a “physical impairment” because it affects the “major life activity” of eating the court first ruled. The question was whether it “substantially limited” Rohr’s eating. This it did for Rohr the court ruled based on the following:

• he cannot eat large meals or skip meals and must eat a snack every few hours 
• he must schedule each day’s blood tests, medications and food intake 
• he sometimes becomes dizzy, symptoms that subside only when he quickly eats something 
• a deviation from his diet regimen for more than a meal or two causes his blood sugar level to rise, aggravating his condition 
• his personal and recreational travel was limited by his need to avoid disruption to his diet  

These factors caused by Rohr’s diabetes were so different compared to the general population as to establish that his diabetes substantially limited his eating. 

Rohr’s diabetes was severe enough to “substantially limit” eating, a “major life activity.” The Court cautioned and noted other cases ruling that not all diabetes causes such disruptions and therefore rises to the level of a “disability” within the meaning of the ADA. The assessment of a “disability” the court observed is an “individualized determination.” 

Robert L. Abell

www.RobertAbellLaw.com 

Protections for Disabled Workers Enhanced By ADA Amendments

Amendments to the Americans With Disabilities Act, usually referred to as the ADA, were signed into law on September 25 by President Bush.  These amendments restored protections for disabled Americans that the courts over the last 15 years have read out of the law.  The amendments include the following:

• directions that the courts construe and apply the law to provide the greatest protections

• directions that the courts determine whether a person is disabled and protected by the law based on their condition without consideration for how medicine or other aids may mitigate the condition

• clarifies that persons wrongly “regarded as” disabled are protected regardless of the scope of their actual disability

• empowers the Equal Employment Opportunity Commission to issue controlling regulations

Robert L. Abell
www.RobertAbellLaw.com

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101).
The protection arose, the court concluded, because the illness and
treatment had caused an enduring impairment to the plaintiff’s “major
life activity” of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign
Service, one that required a medical clearance.  Her medical clearance
was revoked when she later reported a diagnosis of stage-one breast
cancer.  She underwent a successful treatment program, which included
reconstructive surgery.  Despite being cancer-free, her medical
clearance was not reinstated and her job was lost.  Adams claimed this
violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being
cancer-free, she continued to suffer a disability because of an ongoing
impairment to her ability to engage in sexual relations.  To reach that
conclusion the court had to first decide whether engaging in sexual
relations qualified as a “major life activity.”  Based on statutory
text, Supreme Court precedent and applying a “hefty dose of common
sense” the court concluded that “engaging in sexual relations qualifies
as a major life activity.” 

While this case is testament first to Adams’s bravery and the “common
sense” of the court majority is to be acknowledged, it also serves as
an illustration of how Supreme Court and other court rulings have so
limited the Americans With Disabilities Act that its protections are
ever difficult to define.  Adams lost her job with the State Department
because it regarded her as a liability (or at least a potential
liability) since she was a breast cancer survivor.  That she qualified
for protection from disability discrimination in her employment as a
Foreign Service officer based only on an ongoing impairment to her
ability to engage in sexual relations indicates that Congress should
act and restore a healthy dose of common sense to the protections
afforded by the Americans With Disabilities Act by effectively
repealing a number of misguided Supreme Court decisions.

Robert L. Abell
www.RobertAbellLaw.com

Appeals Court Takes Away Benefits By Crediting Opinion of Nurse Who Never Examined the Insured Over the Opinion of Her Treating Doctors

The United States Court of Appeals decision in Iley v. Metropolitan Life Insurance Company (Case No. 06-2589 decided on January 18, 2008 and available on the Sixth Circuit website) illustrates just how easy it is for insurance companies to get out of paying benefits to disabled persons on long-term disability insurance policies that they received through their employment.

Iley was employed by the Kroger company and through Kroger was covered by a long-term disability insurance policy issued by Met Life, which was also the benefit administrator. 

Iley hurt her back, underwent two back surgeries and was paid benefits for 24 months.  Met Life then terminated Iley’s benefits, although Iley’s doctor had just reported that Iley suffered from the precise condition — radiculopathy — that Met Life asserted there was no medical evidence that she suffered from.  Iley appealed the termination of her benefits “and her physicians submitted statements regarding Iley’s disability in conjunction with her appeal.”  Met Life denied Iley’s appeal, claiming that her claim file had been reviewed by a “health care professional.”  Iley then filed suit and a federal district court ruled that she was entitled to benefits. 

The appeals court criticized the district court for not giving “any deference to Met Life’s decision” and for conducting an “in-depth review of the record.”  In addition, even though Met Life, as both the insurer and the benefits administrator, was responsible for deciding whether Iley qualified for benefits that it would then have to pay her, a dual role that is ordinarily considered a “conflict of interest,” the appeals court ruled that “it was improper to find that Met Life acted under a conflict of interest.”  Finally, when it turned out the “health care professional” that reviewed Iley’s claim file on appeal was a nurse, the appeals court failed to consider whether a nurse’s opinion based on only a review of Iley’s claim file not an actual examination of her could or should be given more weight than the opinion of her doctors who had performed two surgeries and treated her for many years and instead asserted that “this court has never held that a file review by a nurse is an insufficient form of review.” 

This case is a disturbing illustration of how empty is the promise of long-term disability insurance that many workers obtain through their employment.  These insurance policies are almost always governed by ERISA.  And under ERISA insurance companies, as the Iley case shows, can disregard the opinions of doctors who have performed multiple surgeries and treated an insured for many years in favor of an opinion from a nurse based only on a review of the claim file, not an actual examination.   

Robert L. Abell
www.RobertAbellLaw.com