her treatment of Terrance. However, even after reading Dr. Johnston's notes, Dr. Levinsky merely confirmed that Dr. Johnston followed standard medical protocol in prescribing Amoxicillin and in recommending that Terrance be kept home from day care and monitored by plaintiff until he was free of fever for 48 hours. He did not aver that Terrance had a particularly inflamed otitis media or any symptoms which could lead to mastoidis and/or meningitis or that he should be kept home for more than 48 hours after his fever disappeared.
Second, while we understand that plaintiff submitted the affidavits to assist the Court in understanding what plaintiff terms the serious nature of otitis media, the opinions of Dr. Levinsky and Dr. Romis that otitis media in general is a "serious medical condition" are medical opinions. However, the only issue before this Court is whether the particular otitis media suffered by Terrance constitutes a "serious health condition" as defined legally by the FMLA and its implementing regulations, not as defined by the medical community. As noted above, an analysis of Terrance's otitis media under the FMLA and its implementing regulations reveals that it is not a "serious health condition."
Third, the physicians' opinions that otitis media is a "serious medical condition" are based largely on the potential dangers of otitis media, especially if left untreated. However, the FMLA and its implementing regulations defining "serious health condition" are not concerned with the potential dangers of an illness but only with the present state of that illness. See 29 U.S.C. 2611(11) ("The term 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves " continuing treatment by a health care provider.); 29 C.F.R. § 825.114 ("For purposes of FMLA, 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves " a three-day period of incapacity and continuing treatment by a health care provider.)
As pointed out by defendant its reply memorandum, "to construe the FMLA to include conditions which, although minor in their initial stages, could evolve into serious illnesses would bring within the protections of the statute virtually every common malady, an out come which is in direct conflict with Congress' intention to exclude from the protections of the FMLA those minor illnesses with short recovery periods." Reply Memorandum at 10. "For example, a cut on a finger, a skinned knee or a common cold, if no cared for properly, could develop into something far more serious; yet no one would argue that Congress intended to cover such minor conditions under the FMLA." Id. It is such minor conditions that Congress believed should be covered under the employer's sick leave policy.
Of course, had Terrance actually been suffering from mastoiditis and/or meningitis or even chronic otitis media during the period October 12-15, 1993, we would have little difficulty finding that he suffered from a "serious health condition". However, the unrefuted record reveals that Terrance had never had otitis media before and that he suffered from the most common form on this occasion. He never complained of any ear pain in the infected ear. He did not have to be seen in an emergency room. In addition, the condition began to clear up as soon as he began his regimen of Amoxicillin on October 12th.
In conclusion, we find that Terrance did not have a "serious medical condition" from October 12-15, 1993 as defined by Congress in the FMLA and by the Department of Labor in the Regulations. No matter where our sympathies may lie, the Court is duty bound to carry out the edict of the FMLA as mandated by Congress. Accordingly, plaintiff is not entitled to the protection of the FMLA and her termination by the defendant did not violate the FMLA.
The motion of the plaintiff for partial summary judgment is DENIED.
The motion of the defendant for summary judgment is GRANTED.
Judgment is ENTERED in favor of the defendant Provident Mutual Life Insurance Company and against the plaintiff Audrey M. Seidle.
IT IS SO ORDERED.
CHARLES R. WEINER