In Silcox v. Christi Oklahoma Regional Med. Center-Ponca City Inc., No. 05-6401, 2006 U.S. App. LEXIS 22714 (10th Cir. Sept. 5, 2006), the court found that the employee had failed to establish that she suffered from an FMLA-covered serious health condition because her chiropractor was not a health care provider within the meaning of the FMLA. Ms. Silcox injured her back while at work. She received treatment from a chiropractor. The chiropractor did not take any x-rays of Silcox’s spine. The chiropractor diagnosed Silcox with a spinal subluxation and filled out a disability slop indicating that Ms. Silcox was restricted from working. Silcox was subsequently discharged for alleged time card fraud for some of the time she was out receiving treatment. Silcox sued alleging that Christi interfered with right to take FMLA leave. The Court found that Silcox was not able to establish a critical element of her claim that she suffered from a serious health condition because her chiropractor did not fit within an FMLA-covered health care provider because she did not verify the subluxation with an x-ray as required. Significantly, the court rejected the employee’s argument that the chiropractor met an alternative definition of an FMLA-covered health care provider as she was recognized as a health care provider by the employer’s group health plan’s benefits manager. The court characterized this claim as “specious given the Secretary’s clear intent to limit coverage to chiropractic treatment that is accompanied by diagnostic x-ray.”
Comment: The decision of the Tenth Circuit is clearly wrong. The court’s restrictive reading of the regulation is at odds with the intent of the DOL. Section 29 CFR 825.118 defines FMLA covered health care providers to include”
A health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.”
The DOL has indicated that, pursuant to the above language, a chiropractor would be an FMLA-covered health care provider even if they did not verify the subluxation by x-ray if the chiropractor was recognized as a health care provider pursuant to the employer’s group health plan. Such recognition is manifested by payment of a bill for services. In a June 19, 1995 advisory opinion requesting that the x-ray condition be eliminated for chiropractors, the DOL opinion:
We believe that the above-mentioned refinements in the final rule should take care of those circumstances where the employer or the employer’s plan is wiling to accept medical services by a chiropractor that go beyond the treatment specified in the definition.
The above language strongly suggests that, as far as the DOL is concerned, a chiropractor is an FMLA-covered "health care provider" where the group health benefit plan recognizes the chiropractor as such even though the subluxation was not verified by x-ray.