[nagdu] Local business asks service dog to leave

[Tamara Smith-Kinney]

Julie,

I had not thought about the determination of disability facet.  That can get
pretty scarey in some cases, especially when the determination is for the
purposes of qualifying a person for various resources, etc.  Once you get
attorneys and doctors dueling over a patient's status there, the battle can
drag on for years and get really expensive for someone.  Sigh.  My long ago
work experience in the legal field of workers' compensation and related
disability issues gave me some real shockers, until I just got grim because
some trends were too common.  People can and do die before someone gets
around to ruling that, yes, indeed, they were disabled and are due
compensation and retroactive benefits...  Very ugly sometimes!

For a case where the determination of disability under the ADA regarding a
service dog, I just can't help wondering where people with hidden
disabilities, etc., would stand.  As you say, blindness can be tested for
and observed, and there are hard-core objective findings for many
conditions...  Although I recently heard from someone that wasn't getting
benefits, training, tools, etc., because someone had decided the blindness
was psychosomatic, since the patient's reporting of what could be seen and
not seen changed over time...One of the resources denied on that basis was
an ophthamological exam....

With RP, the damage to my retinas can be seen, but what I "see" and "don't
see" comes and goes with lighting conditions, how my brain is coping with a
new level of vision loss, etc.  Without a proper examination to show the
damaged retinal cells, I guess I could be diagnosed as having psychosomatic
blindness and denied an exam to show that I can't effing see!  Sigh.  Guess
those photos of my retina are worth something after all!  Meanwhile, I have
a head cold so can't see a danged thing!  /lol/  That's because once an
adult loses vision, the optic cortex gets rewired to handle hearing and
other senses.  So in familiar surroundings, I "see" just fine as far as I
know, until something reminds me the light is off and it's pitch dark.
Since my hearing and balance are a little funky due to congestion, it seems
to me I just can't see a darn thing around the house.  Very weird.

By now, I don't notice progressions in vision loss so much consciously, but
I guess my brain is still struggling some with the neurological adaptations
to the loss of visual input.  So I can tell I'm having a rough go when I
shriek if I hear one of my roommates flip off the light switch.  /lol/  OMG!
I can't see!  Whatever shall I do???  Good grief!

They do not have any fun over that at my expense.  Not at all.  /lol/

Tami Smith-Kinney

-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf
Of Julie J
Sent: Thursday, March 03, 2011 2:35 PM
To: NAGDU Mailing List,the National Association of Guide Dog Users
Subject: Re: [nagdu] Local business asks service dog to leave

Albert,

Interesting questions...There is no way to know how a judge would interpret 
any of this.  So everything I'm saying is strictly conjecture.

The training of the dog is important, but if the person doesn't have a 
qualifying disability, no amount of training will make the dog a service 
dog.  Example-Monty is a trained guide dog, but if my sighted husband takes 
him to the grocery store, all that training doesn't matter because it isn't 
mitigating any disability.  It would be fraudulent for my nondisabled 
husband to claim the need for a guide dog.

the first burden of proof in court would be, does the person have a 
disability as defined under the ADA?  When we are talking about blindness, 
it's pretty easy because level of vision is pretty easy to test and assign a

number.  It is generally agreed that 20/200 or less vision in the better eye

or a field of vision less than some number that escapes me at the moment. 
That's all straightforward.  Likewise deafness can be measured and noted 
very similarly.  People who use a wheelchair are also pretty straightforward

as being disabled.  Where it gets sticky is with conditions that come and 
go, or the effects aren't consistent.  Under the ADA a disability must 
substantially limit your daily life.  They use seeing, hearing and walking 
as examples.

To dig deeper you have to read into case law.  In Toyota vs. Williams, Ms. 
Williams hands were injured so that she could no longer do her job.  she was

let go by Toyota.  In court she claimed that she had a disability and was 
discriminated against by Toyota by being fired from her job.  It was 
determined that Ms. Williams was not disabled because she still had enough 
function in her hands to brush her hair and teeth, even though there were 
many other tasks she could not perform, including her job duties, which if 
I'm remembering correctly were obtained by an accident at her job with 
Toyota.

A diagnosis does not make a disability.  Two people can be diagnosed with 
the same seizure disorder, one could be considered to be disabled and the 
other not.  It depends on how that diagnosis presents itself in the daily 
life of the individual.  Person A might be disabled if they have seizures on

a daily or weekly basis which limit their ability to leave their home, work,

or care for themselves.  Person B might not be considered to be disabled if 
they only have seizures every few months because they can still go about 
their normal affairs with little interruption.

My understanding has always been that outside of easily measurable 
disabilities like blindness, only a judge can determine if a person is 
considered to be disabled.  Toss in psychiatric disabilities and you can see

how messy this gets in a hurry.
Anyway I've gotta get to a meeting.  I'll think more on it and see if I can 
come up with anything that explains it more clearly.

Julie 



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