Temporary Impairments, Minor Defined, and Whether Medical Testimony is Required in Order to Establish a Disability

September 9, 2024

I hope everyone had a good weekend. I just got back from the Federal Bar Association national convention in Kansas City, which was fabulous. I was part of a fantastic panel speaking on policing and persons with disabilities. In particular, we talked about a lot of different things. My part focused on why Graham v. Connor should no longer be used as the basis for training (we discussed that issue in this blog entry), and the police responsibility for getting the laws regarding service animals, particularly with respect to title III of the ADA, correct. The panel was fabulous and consisted of myself, Aisha Novasky of Disability Rights California, and two Brown Goldstein attorneys-Jamie Strawbridge and Michael Abrams.

Turning to the blog entry of the day, it is a case discussing the following (which will also serve as my blog categories): 1) whether temporary disabilities are covered by the ADA; 2) what does it mean to have a disability that is minor for purposes of the regarded as exception; 3) when is medical testimony required to establish a disability; and 4) miscellaneous matters. After describing the facts of the case, we will discuss each one of those topics below. Of course, at the end of the blog entry, we will have our thoughts/takeaways section. The case of the day is Morgan v. Allison Crane and Rigging, LLC, a published decision decided by the Third Circuit on September 4, 2024, here.

Facts

In the fall of 2019, Andrew Morgan was employed by Allison Crane and Rigging as a millwright laborer until he was terminated on November 18, 2020.

On September 29, 2020, while working at the Williamsport location, Morgan injured his lower back. Although he was in “severe pain,” Morgan completed his shift. He informed at least one co-worker, as well as Hastings (his supervisor), about his back injury. Hastings told Morgan that he would “relay the message” to Mundrick. Morgan continued working his regular shift through the remainder of the week but informed his crew that he was still in pain and considering chiropractic treatment.

Several days later, on October 1, 2020, Morgan saw a chiropractor. Morgan testified that the chiropractor diagnosed him with a bulged or herniated disc in the lower back and recommended that Morgan return twice weekly for treatment to alleviate the lower back pain. Morgan’s back became inflamed when he sat, walked, or turned left or right. Morgan complied with the treatment plan by making twice-weekly visits to his chiropractor, and the chiropractor further advised Morgan to switch to “light duty” work.

On October 7, 2020, Morgan had a meeting with several supervisors—including Bonislawski and Thomas Ungard. Morgan again informed them of his back injury at that meeting and he was told that he would be placed on light duty. He was also advised to not file a workers compensation claim on the grounds his injury was not sufficiently severe.

On October 8, and again on October 22, 2020, Morgan’s chiropractor wrote a note stating that Morgan should be excused from “bending or lifting” items over fifteen pounds through November 4, 2020. 8 Then, on November 5, 2020, the chiropractor further restricted Morgan from bending or lifting items over thirty pounds for another thirty days; a period which would have run through December 5. However, on November 25, 2020, Morgan’s chiropractor released Morgan “to his full occupational duties without restrictions.” In total, from October 8 until November 25, 2020, Morgan’s chiropractor placed him on bending and lifting restrictions for forty-eight days. Morgan shared the chiropractor’s notes with Bonislawski, and Morgan concedes that Allison Crane did indeed place him on light duty restrictions, until it terminated him.

According to Allison Crane, Morgan’s actions during one week in November led to his termination. On November 13, 2020, Bonislawski warned Morgan about not wearing the appropriate protective equipment while working. Several days later, Morgan was assigned to drive a truck to escort a crane from a job site in Syracuse, New York. Morgan texted the dispatcher that he could not perform the task because the timing conflicted with an important back appointment that he did not want to miss, but he was willing to do another job that did not conflict with the appointment.

Morgan testified that, later that day, he was again contacted by dispatch, and he told dispatch that he could not do the job because he could not “sit for that long of a time” without inflaming his back but that he could do “light duty” work. According to Morgan, the dispatcher said “they would be able to find somebody else.” Morgan claims that he went to work in the yard on November 17, 2020.

The next day, on November 18, 2020, Bonislawski fired Morgan, purportedly because Morgan failed to “follow the day off request process as well as other policies” when he did not “show for work” on November 17.12 Prior to Morgan’s termination, he continued to work full time, for the same wages, and did not miss any workdays.

Court’s Reasoning That Temporary Impairments Can Qualify As an Actual Disability under the ADA

Prior to the enactment of the amendments to the ADA, the Supreme Court had held in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that an impairment must prevent or severely restrict the individual when doing activities that are of central importance to most people’s daily lives and be permanent or long-term in order to qualify as a disability.
In enacting the amendments to the ADA, Congress rejected the Supreme Court’s permanency standard. More specifically, Congress mandated that the definition of disability must be construed in favor of broad coverage of individuals and to the maximum extent permitted. In response to that admonition, the EEOC explained that even an impairment expected to last less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
Other Circuits since the amendments, have held in published opinions that temporary impairments can qualify as an actual disability under the ADA. The Third Circuit has reached the same conclusion in unpublished opinions. Even the defendant, now agrees that an impairment lasting fewer than six months can constitute a disability.
The trial court’s reliance on a prior Third Circuit decision is misplaced because that decision applied the pre-amendment standard to what constitutes a disability. While that decision came down after the amendments, the actual case was filed before the amendments. So, the law before the amendments was the law in effect at the time the case the trial court relied on was decided.
The analysis of Morgan’s general back pain under the ADA must focus on whether his injury substantially limited his ability to perform a major life activity as compared to most people in the general population. Morgan clearly established such a limitation with his allegations. In particular: 1) Morgan testified that it hurt to sit, to walk, and hurt to turn left or right; 2) from October 8 until November 5, 2020, Morgan’s chiropractor advised him against lifting anything over 15 pounds and from bending; and 3) from November 5 until November 25, Morgan was still advised not to bend and was further restricted from lifting more than 30 pounds.
Given that lifting and bending are major life activities, a reasonable jury could find that Morgan’s back pain, even though it was temporary, constituted an actual disability because it substantially limited the ability to perform major life activities as compared to most people in the general population.
The amendments to the ADA makes clear that the duration of an impairment is not dispositive of whether someone is disabled.
All short-term impairments do not necessarily rise to the level of disability under the ADA because a plaintiff must still demonstrate that the short-term impairment substantially limits a major life activities.

III

Court’s Reasoning That Sufficient Allegations Exist to Show That Morgan’s Temporary Impairment Was Not Minor and Therefore Is Not Precluded by the Regarded As Exception

An impairment lasting fewer than six months is transitory. However, for the transitory and minor exception to apply, the impairment must be BOTH transitory and minor.
Minor is not defined by statute, but coverage under the regarded as prongs should not be difficult to establish.
The determination of whether an impairment is minor must be made on a case-by-case basis, and the factors to be considered depend on the particular impairment.
The requirement for a prima facie regarded as claim are less demanding than those for an actual disability claim.
The only issue the trial court had to determine was whether his back pain was also minor.
It would be paradoxical to conclude that Morgan’s back pain that limited the major life activities of bending, lifting, walking, and sitting was minor given that the substantially limits requirement is a higher burden to meet.
The minor requirement of the regarded as exception is only intended to include impairments at the lowest end of the spectrum of severity, such as common ailments like the cold or flu. Back pain that causes difficulty and bending, lifting, walking, and turning left or right, is undoubtedly more than minor pain.

Court’s Reasoning as to When Medical Testimony Is Required in Order to Establish a Disability

Medical testimony is not always required to establish a disability.
The necessity of medical testimony is decided on a case-by-case basis, and it turns on the extent to which the alleged impairment is within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge.
Generally, ailments that are the least technical nature and are the most amenable to comprehension by a lay jury need not be established by medical evidence.
Arm and neck pain are among those ailments not requiring medical evidence. However, a herniated disc is a spinal injury not within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge. Accordingly, Morgan’s claim that he was unlawfully discriminated against because of an actual herniated or bulged disc disability is dismissed.

Miscellaneous Matters

The Third Circuit also said that the trial court erred in dismissing Morgan’s retaliation and failure to accommodate claims. In particular, the defendant did not even move for dismissal of the retaliation claims and the trial court did not report to dismiss the retaliation claims on its own motion. Accordingly, the order dismissing the retaliation and failure to accommodate claims must be vacated and remanded to be addressed by the trial court. On remand, the trial court needs to consider whether the defendant failed to preserve its arguments against the retaliation claim.
The court also said that the defendant may have run itself into trouble when it tried to discouraged Morgan from filing a workers compensation claim and he in fact refrained from doing so.

Thoughts/Takeaways

Temporary impairments can be a disability under the ADA after the amendments (since 2009).
Toyota Motor, here, is no longer good law.
Sutton v. United Airlines, here, is still good law with respect to any allegation that the major life activity of working was substantially limited. After the amendments, there should be almost no reason why a plaintiff would allege working as the major life activity. In fact, I have argued I have argued in the past that it would be legal malpractice for a plaintiff to do so except in the most unusual of cases.
Disabilities lasting less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, the duration of an impairment is not controlling when determining whether a person is disabled under the ADA.
Establishing a substantial limitation on a major life activity should not be difficult in most cases. It becomes even less difficult if the argument is that the defendant regarded the plaintiff as having a physical or mental impairment (regarded as claim).
For the regarded as exception to apply, the disability must be BOTH transitory and minor.
Whether a disability is minor turns upon whether there was a substantial limitation in a major life activity compared to most people in the general population.
Medical testimony may or may not be required to establish a disability. However, the standard set by the court is ambiguous. Therefore, as a matter of preventive law, a plaintiff will want to have at the ready a person to discuss why the physical or mental impairment is a disability.
Courts need to be clear when dismissing claims to why they are doing it. For example, are they dismissing claims on their own motion or upon a request from the party.
Dissuading a person from filing a claim is never a good idea. See this blog entry.
This case illustrates that the minor exception of transitory and minor in regarded as cases leads back to the actual disability prong. That is, you look to whether a substantial limitation on a major life activity exists. Such an analysis lead to a rather quirky situation where for regarded as claim, you don’t need a substantial limitation on a major life activity. However, if defendant argues the transitory and minor exception, then a substantial limitation must be shown, though the burden for showing a substantial limitation (not clear at all who has that burden), is not nearly as high as it is for an actual disability claim.