Wednesday, September 16, 2009
Obese Workers and Workers Compensation
The National Law Journal reports:
Two recent court rulings have employers on edge about employees with serious weight problems because one little accident may force them to pay thousands to get the weight off.
That's what's happened to an Indiana pizza shop, which on Sept. 14 filed a petition for a rehearing after an appellate court ordered it to pay for a 340-pound employee's weight-loss surgery to ensure the success of a separate operation for a work-related back injury.The Indiana Court of Appeals on Aug. 6 had held that The Gourmet Pizza must pay for the $20,000-plus lap-band surgery for Adam Childers, an obese cook who was hit in the back by a freezer door at work. Doctors had deemed the weight-loss surgery necessary before proceeding with the back operation.
And this does not appear to be an isolated or aberrant case:
The Indiana ruling mirrors a similar case in Oregon, where the state's Supreme Court ruled Aug. 27 that state workers' compensation insurance must pay for gastric bypass surgery to ensure the effectiveness of knee replacement surgery. In that case, the employee had developed arthritis in a knee he injured on the job in 1976. The state Supreme Court found that it did not matter that the weight-loss surgery also helped treat his morbid obesity, so long as it helped treat the original injury.
I am no workers compensation expert (maybe my friends at Workers Comp Insider can take a look), but these cases seems outrageous. Especially the first case, because he needed the surgery before he got injured. I would call his and the other person's need for weight surgery outside the scope of the injury they received at work.
PS
https://lawprofessors.typepad.com/laborprof_blog/2009/09/obese-workers-and-workers-compensation.html
Comments
Mike, yes, I completely understand your analysis and it makes sense. But what I am worried about is overwhelming the WC system by requiring employers to pay for operations that are much more expensive than the underlying injury would be if the employee was not obese.
This might be getting into another debate, but, of course, generally speaking obesity is not covered as a disability under the ADA. I think in most cases this is because people have some control over their weight.
So my concern is that all WC claims will not be able to be met for all employees injured at the job because the employer had to pay for some expensive stomach surgery to permit the obese employee to get their work-related injury repaired.
Also, assuming that the weight issue is within the control of the employee, why don't we have the employee pay for the weight surgery and the employer for the work-related part (knee replacement, etc.)?
I don't mean to be insensitive here, but we are dealing with a system with finite resources, no?
Posted by: Paul | Sep 16, 2009 12:22:26 PM
if we had "single payer," wouldn't the entire practice of workers' comp disappear?
no special workers' comp premiums; no disputes over coverage; no lost worktime disputing treatments.
just askin'
Posted by: kent | Sep 16, 2009 2:49:28 PM
I think I disagree, Paul. The back injury was work-related and therefore under WC law is subject to medical treatment under the system. It is not infrequent that some pre-existing condition interferes with treatment of some other condition. Without the weight loss, here, the back surgery would be too risky or too likely to be unsuccessful. The weight loss treatment would not have been necessary, though perhaps desirable, absent the back injury. So, the weight loss surgery is linked to WC coverage.
If WC coverage is denied, that creates an odd incentive for employers to hire obese employees in order to shelter themselves from WC liability for workplace injuries that would otherwise be covered but for the need to do something like weight loss surgery upfront. Does that make sense?
Posted by: Mike Zimmer | Sep 16, 2009 11:05:23 AM