dissenting.
I respectfully dissent.
The district court correctly concluded that Kejuan did not have a “serious health condition” as defined by the Family and Medical Leave Act (FMLA). In this case involving continuing treatment by a health care provider, rather than inpatient care, Kejuan’s ear infection would qualify as a “serious health condition” only if it resulted in “[a] period of incapacity ... of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition.... ” 29 C.F.R. § 825.114(a)(2)(i) (emphasis added). In order to qualify as continuing treatment, the regulations specifically require an incapacity of more than three consecutive calendar days at the onset of the condition plus subsequent treatment or incapacity.
The record does not support Ms. Caldwell’s contention that Kejuan was incapacitated for more than three consecutive days at the time of the onset of the condition. Ms. Caldwell’s complaint listed no periods of incapacity. (JA at 1-3). Ms. Caldwell’s sworn response to interrogatory number 4, which asked her to list the dates of incapacitation, stated, “June 7, 8, and 9.” (JA at 27). Ms. Caldwell’s brief in response to *678Holland’s motion for summary judgment stated that Kejuan was incapacitated the week following his July 17 surgery. (JA at 48-51). Likewise, Ms. Caldwell’s statement of facts stated he was incapacitated the week following his July 17 surgery. (JA at 52-54). Also, Ms. Caldwell’s affidavit alleged Kejuan was incapacitated the week following his surgery. (JA at 55-57). Ms. Caldwell’s response to Holland’s reply to her response to its motion for summary judgment listed no periods of incapacity. (JA at 76-77). Consequently, the district court noted in its March 18, 1999, order that Ms. Caldwell “provided no evidence that her son was incapacitated for more than three consecutive days during the time period of the June 7 absence as required by the regulations .” (JA at 84). The district court ordered Ms. Caldwell “to supplement [her] response to [Holland’s] motion for summary judgment with any evidence regarding the incapacity of [Kejuan] immediately following his June 7 examination.” (JA at 85). It was not until Ms. Caldwell filed her supplemental affidavit in response to the district court’s order that she, for the first time, alleged that her son was “incapacitated beginning Saturday, June 7, 1997, for more than three (3) consecutive days.” (JA at 89). Prior to this supplemental affidavit, Ms. Caldwell had alleged that Kejuan was incapacitated only on June 7, 8, and 9, and during the one-week period following his surgery on July 17. Ms. Caldwell made no attempt to amend her sworn answer to interrogatory number 4.
At oral argument, I asked counsel for Ms. Caldwell about the dates of Kejuan’s incapacity. The following exchange occurred:
Judge Hansen: In your response to interrogatory number 4, which is in the appendix at page 27, you state that this boy was incapacitated on June 7, 8, and 9, but in the supplemental affidavit from your client she states that he was incapacitated beginning on June 7 for more than three days, that’s appendix at 89, how do you explain that inconsistency?
Counsel: I guess I should have said at least three days, that’s what I was saying, it’s at least three days, 7, 8, and 9.
Judge Hansen: Is that what the rule is, at least three days?
Counsel: I think the rule is more than three days, in any event he was incapacitated. .Let me move on.
I respectfully disagree with the court’s characterization in footnote 6 of the exchange at oral argument. Clearly, the statement by counsel for Ms. Caldwell was an acknowledgment that the assertion in the supplemental affidavit was incorrect and that it should have stated “at least three days.” Counsel’s last statement was not an attempt to show conformity with the regulations, as footnote 6 suggests. Counsel’s last statement before changing the subject away from the dates of incapacity was an acknowledgment that “at least three days” of incapacity does not meet the FMLA requirement of more than three days of incapacity. Additionally, my interpretation of counsel’s concession at oral argument is consistent with the record. Nowhere in the record did Ms. Caldwell ever allege more than three days of incapacity during the time period of the June 7 absence until she was ordered by the district court to offer such evidence. If anything is inconsistent with or in the record, it is Ms. Caldwell’s supplemental affidavit. Kejuan’s ear infection did not, according to counsel’s own concession, incapacitate him for more than three days at the onset of the condition on June 7. The supplemental affidavit in response to Holland’s motion for summary judgment, as qualified by counsel at argument, does not present evidence sufficient to show a genuine dispute of material fact such that a reasonable jury could return a verdict in favor of Ms. Caldwell. See Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371 (8th Cir.1995).
*679An affidavit submitted in response to a motion for summary judgment which contradicts earlier sworn testimony without explanation of the difference does not create a genuine issue of material fact. See RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.1995). Here, Ms. Caldwell’s supplemental affidavit asserts for the first time that her son was incapacitated for more than three days following the onset of his condition. This statement directly contradicts the sworn interrogatory response that Kejuan was incapacitated only on June 7, 8, and 9. This contradiction in sworn statements is the type of inconsistency that this court warned of in RSBI Aerospace, 49 F.3d at 402 (“[Tjhis circuit has long held that parties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment.”) (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983)).
The court would like to add together Kejuan’s incapacity on June 7, 8, and 9, along with his one-week period of incapacity following his July 17 surgery to remove his adenoids and tonsils and to place tubes in his ears, in order to meet the “more than three consecutive calendar days” requirement. Such an interpretation is inconsistent with the language of the regulation. Section 825.114(a)(2)(i) requires a period of more than three days incapacity and subsequent treatment or incapacity. As the court’s opinion explains, the applicability of the FMLA relies on a two-pronged inquiry. First, Kejuan must have been incapacitated for a period of “more than three consecutive calendar days;” second, Kejuan must have been subsequently treated or incapacitated. Although Ke-juan’s one-week recovery from his July 17 surgery met the second-prong “subsequent treatment or period of incapacity relating to the same condition” requirement of § 825.114(a)(2)®, Kejuan’s initial condition did not meet the first-prong requirement of a period “of more than three consecutive calendar” days of incapacity.
The court relies on Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.1998), to support its contention that the time period following Kejuan’s surgery on July 17 meets the first prong requirement of more than three days of incapacity. However, Hodgens is distinguishable. In Hodgens, the plaintiff suffered from atrial fibrillation, a serious and potentially life-threatening heart condition. Id. at 157. Unfortunately, the doctor was unable to initially diagnose his condition. The plaintiffs first visit to the doctor was on August 4, 1993, but he was not correctly diagnosed until September 21, 1993. Id. During that time period, the plaintiff had numerous doctor’s appointments and medical tests to evaluate his condition. Once the plaintiff was correctly diagnosed, the doctor excused the plaintiff from work during the period of September 22 to September 27, 1993. Id. The First Circuit determined that the four-consecutive-day period of September 22 to September 27 met the three-day requirement of § 825.114(a)(2). Id. at 163. Thus, the First Circuit concluded that even the plaintiffs intermittent absences before the diagnosis were protected under the FMLA if the absences “were necessary to determine if a serious health condition exist[ed] or to treat such a condition.” Id. (internal citations and quotations omitted). However, only the absences that were actually necessary for the plaintiff to attend medical appointments related to his atrial fibrillation were protected under the FMLA. Id. at 172 (“[Ajpart from the period from September 22-27, while [the plaintiffs] medical condition clearly did require him to be absent from work ... for his medical visits, it did not require the vast majority of his absences during August and September.”).
Assuming Hodgens is a correct interpretation of the FMLA regulations pertaining to intermittent leave, its conclusion is not applicable to this case. The doctor for Ms. Caldwell’s son did not have any difficulty in correctly diagnosing Kejuan’s condition. At the initial June 7 visit, the doctor in*680formed Ms. Caldwell that Kejuan suffered from an acute ear infection and that he would probably require surgery to avoid hearing loss. Although Kejuan’s condition may have become a serious health condition at the time of his surgery, Kejuan did not suffer from a serious health condition at the time of his initial doctor’s appointment. “[T]he 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.” Seidle v. Provident Mut. Life Ins. Co., 871 F.Supp. 238, 246 (E.D.Pa.1994) (referring to 29 U.S.C. § 2611(11) and 29 C.F.R. § 825.114).
In contrast, the plaintiff in Hodgens suffered from a serious condition at the time of his initial doctor’s appointment, even though the doctor did not know exactly what that condition was. The doctor did, however, recognize that the plaintiff might be suffering from a serious condition, and therefore, the doctor ordered the plaintiff to undergo a series of tests. Hodgens, 144 F.3d at 157. In fact, the doctor initially suspected that the plaintiff might be suffering from angina, “which could be extremely serious or even fatal.” Id. The doctor testified that it was reasonable for the plaintiff to stay home from work until he got the results of his stress test. Id. This situation is completely different from Ms. Caldwell’s situation as evidenced by the fact that the doctor correctly diagnosed Kejuan’s condition, did not order any tests, recommended surgery in the future to correct the problem, and did not suggest that Kejuan should stay in bed or not participate in his normal activities. Certainly there is a distinction between an undiagnosed, potentially life-threatening heart condition and a properly diagnosed and promptly treated ear infection.
Unlike the First Circuit, this court today has greatly expanded the definition of incapacity to include periods of time when a patient is taking antibiotics or if the illness disrupts basic daily routines. The court suggests that Kejuan may have been incapacitated for at least the ten-day period following the onset of the illness during which time Kejuan was taking antibiotics and that he may have been incapacitated for the entire period from June 7 to July 17, an assertion never made even by Ms. Caldwell. The court has supplanted the express guidance provided by the FMLA regulations with its own view of what constitutes an incapacity. See 29 C.F.R. § 825.114(a)(2)(i) (Incapacity is an “inability to work, attend school or perform other regular daily activities.”). In this respect, I reject the court’s suggestion that “incapacity” under the FMLA may be defined by the sniffle standards imposed by a local daycare center.
The legislative history of the FMLA indicates that Congress intended the FMLA to apply only to serious health conditions. Congress did not include those “minor illnesses which last only a few days and surgical procedures which typically do not require hospitalization and require only a brief recovery period.” Seidle, 871 F.Supp. at 242 (quoting H.R.Rep. No. 103-8, pt. 1, at 29 (1993)). Kejuan’s ear infection, up until the point of his surgery, was a minor illness as shown by his not more than three days of incapacity, his improvement on the onset day which allowed his mother to work on the evening of onset (June 7) and to return to work on June 9, the lack of any restrictions placed on him by his doctor, the length of time between his June 7 initial doctor visit and his next follow-up visit on July 1, and the scheduling of his surgery nearly six weeks after the onset of his illness. Ms. Caldwell’s one-day absence from work on June 7 to take her son to the doctor is not the type of absence that Congress enacted the FMLA to cover. Congress expected absences for these types of minor illnesses to be covered under an employer’s sick leave policy. See id.
Consequently, I would affirm the judgment of the district court because Kejuan did not have a “serious health condition” *681as defined by the FMLA and its regulations.