Obese Employees Injured at Work Add on Weight-Loss Surgery

The National Law Journal

September 16, 2009

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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.

The court found that the pre-existing condition of obesity combined with the accident at work to create a single injury.

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.

The rulings are a sign of things to come, warn management-side lawyers. "Every obese or dramatically overweight individual in the workplace who suffers from a work-related injury to the back, knee or hip will have the opportunity to claim that gastric surgery is a necessary precursor to surgery for the work-related injury," said Sara Begley, a partner at the Philadelphia office of Reed Smith who represents employers in workplace disputes.

Begley said that workers' compensation "is for a work-related injury, not because of a health problem, which is what obesity is." She warned that the rulings "open up the door to the question of whether employers take a second look at hiring people with weight issues."

Kevin Kearney, a partner in the South Bend, Ind., office of Fort Wayne, Ind.'s Hunt Suedhoff Kalamaros, who is representing the Indiana pizza shop, echoed similar concerns.

He said that the ruling turns employers, through the workers' compensation system, "into the de facto insurance providers" for employees with a wide range of pre-existing health problems. "It just so happens that this case has to do with an employee's weight, but it could have just as well been diabetes," said Kearney. "We're not trying to make any statement about weight."

Rick Gikas, a solo in Merrillville, Ind., who represented the Indiana plaintiff, adamantly disagrees. He said the appellate ruling followed a well-established legal theory. "It definitely confirms that longstanding rule that you take your employee as you find them," he said.

Gikas argued to the court that his client was no different than a hemophiliac who suffers an injury at work and then needs various blood clotting agents to avoid bleeding during surgery. "A minute before [my client] got hit in the back by a refrigerator door, he didn't need weight reduction surgery. But afterwards he did," said Gikas.