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A Weighty Decision
A court decision requiring an employer to pay for weight-loss surgery has raised concerns among businesses, which are bracing for more such claims. The decision "sets a remarkable and troubling obligation for employers," one expert says. And it may result in some companies refusing to hire the obese -- which would heighten employer liability.
The Indiana Court of Appeals has ruled that a pizza shop must pay for a lap-band weight-loss surgery for a 340-pound employee so another surgery he needs -- for a back injury he suffered at work -- can be successful. Employment experts and analysts say the decision in the case, Boston's The Gourmet Pizza vs. Adam Childers, raises concern among businesses, which are bracing for more such claims. "This kind of situation will happen again ... and employers are undoubtedly worried about that," says Lewis Maltby, president of the National Workrights Institute in Princeton, N.J., an offshoot of the American Civil Liberties Union. The injury occurred in March 2007, when Childers was accidentally struck in the back by a freezer door at Boston's The Gourmet Pizza, located in Schererville, Ind. At the time of the accident, he was 25 years old and weighed 340 pounds. Doctors told him he needed surgery to ease his severe pain, but that the operation would do no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident. Although Boston's agreed to pay for the back surgery, it argued that it was not obligated to pay for a weight-loss operation that could cost $20,000 to $25,000 because Childers was already obese when the accident occurred. The court's ruling, which backs up a 4-3 decision by Indiana's workers' compensation board, states that the surgery -- and the disability payments made to Childers while he was unable to work -- were covered by law because his weight and the accident had combined to create a single injury. Moreover, the ruling states, "Childers' weight at the time of the injury made him 'more susceptible' to the immobilization that resulted from his workplace back injury, thereby requiring the lap-band procedure as part of the necessary treatment for that injury." In addition, according to both the court and the board, Boston's never presented any evidence that his weight had been a medical problem before the accident. Some employment lawyers and HR experts believe the case could have a chilling effect on business. "As a general proposition, this decision sets a remarkable and troubling obligation for employers," says Lawrence Z. Lorber, a Washington-based partner in the law firm of Proskauer Rose. "It is often the case that medical treatment -- for workers' comp or otherwise -- becomes contingent on, or related to, ancillary medical treatment," he says. However, "this opinion seems to expand the scope of workers' comp liability and obligations. Indeed, an individual's personal condition often comes into play in determining the extent of workers' comp disability -- or if there is, indeed, a workers' comp disability," Lorber says. "This decision seems to turn established law and practice on its head." Lorber and others go so far as to suggest the case, coupled with a similar Oregon court ruling, could make employers think twice before hiring workers with health conditions that might cost them thousands of dollars in litigation. It "may create a disincentive to employers hiring obese individuals or, indeed, workers with any discernable physical condition," says Lorber. However, to the extent that happens, he adds, "the new Americans with Disabilities Amendments Act and proposed U.S. Equal Employment Opportunity Commission regulations make it clear that making employment decisions based on such physical conditions would probably subject those employers to the remedial provisions of the ADA. It's that very possibility -- that employers might be less inclined to hire obese workers -- that is the most dismaying aspect of the case for employers, says Joseph Beachboard, a Los Angeles-based labor and employment attorney with Ogletree Deakins. "My word of advice to HR is you're much more likely to get into big trouble saying, 'I'll be less likely to hire someone who's overweight,' than to simply say, 'This is one of a finite number of cases where something like this could occur,' " Beachboard says. He concurs that it's "really not that unusual or all that new, under the general premise of workers' comp," for an employer to have to address an underlying condition or injury "to bring the employee back to the state of health he was in before the injury." But workers' comp, he says, "is also designed to limit the employer from exposure if he complies" with the law. "If employers start over-reacting to this, thinking they're minimizing their risk by excluding obese workers from their workplace, the very opposite will occur," Beachboard says. "They'll be opening themselves up to far more in the way of risk and exposure." Nonetheless, Lorber says, the situation puts employers "directly between 'the no-longer-proverbial' rock and a hard place!"
October 22, 2009 Copyright 2009© LRP Publications |
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