2. A qualifying serious health condition
To qualify for leave under the FMLA, Bell must establish that
he had a "serious health condition." The FMLA defines a "serious
health condition" as "an illness, injury, impairment, or physical
or mental condition that involves (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider." 29 U.S.C. § 2611
(11); see also Price, 117 F.3d at 1023. Further, the Code of
Federal Regulations defines a "serious health condition" as: "[a]
period of incapacity . . . of more than three consecutive days,
and any subsequent treatment that also involves: (A) Treatment
two or more times by a health care provider . . . or (B)
Treatment by a health care provider on at least one occasion
which results in a regime of continuing treatment under the
supervision of the health care provider."
29 C.F.R. § 825.114. Whether an employee suffers from a "serious health
condition" is a question of law. Haefling v. United Parcel Serv.,
Inc., 169 F.3d 494, 499 (7th Cir. 1998) (finding that "an
employee may not sidestep [the issue] in the context of summary
judgment merely by alleging his condition to be [a `serious
Bell did not receive in-patient care. Thus, the court must
determine whether evidence exists to show that Bell suffered from
a period of incapacity and received continuing treatment by a
health care provider. Haefling, 169 F.3d at 499. "Incapacity"
means more than an inability to work: Bell must show that the
illness or impairment resulted in his inability to perform
routine daily activities on those days he was absent or unable to
work. Id. (finding that the plaintiff was not incapacitated
because he testified that he was able to care for himself, to eat
and drink, to engage in marital relations, and to learn).
Further, Bell must show that he saw a doctor at least twice for
the same illness or injury, or that he saw a doctor once but that
doctor prescribed an on-going treatment plan.
Bell does not address the issue of whether he suffered from a
serious health condition. In fact, Bell does not directly address
the issue of his eligibility under the FMLA. Bell does claim that
he sought the care of a health care provider twice: once when he
saw Dr. Kharwadkar on March 3, 1998 and again when he went to
Cook County Hospital and was treated by Dr. Parker. However, the
court finds that neither of these medical visits qualify as
"continuing medical treatment" as required under the statute or
as defined by the Code of Federal Regulations.
First, Bell saw Dr. Kharwadkar for the first time over a week
after Bell had been terminated. Although Bell claims that he saw
Dr. Kharwadkar on March 3, 1998 — and a letter from Dr.
Kharwadkar states that Bell had been under his care since March
3, 1998 — the medical records do not support this date. On
the contrary, the medical records indicate that Bell did not see
Dr. Kharwadkar until March 24, 1998. Further, in his deposition,
Dr. Kharwadkar admits that he did not see Bell until March 24,
Q. But your offices [sic] notes show that Mr. Bell
had not had his first office visit with you for his
back condition until March 24th, '98, is that
A. That is right.