1. FEATURE STORY: INJURED EMPLOYEES' WEIGHT-LOSS SURGERY COVERED BY WORKERS' COMP
According to a November 2009 collaborative report from the United Health Foundation, the American Public Health Association, and the Partnership for Prevention, the prevalence of obesity in the United States is estimated to increase from the current level of 31.30% to 42.80% in 2018.
It stands to reason that as the obesity level continues to rise, so too will the number of individuals electing to have weight-loss surgery. For some individuals, the decision whether to have the surgery isn't an option; it may be necessary to successfully treat a physical injury.
An interesting question for employers to consider is if the individual has an injury that is covered by Workers' Comp, would the required weight-loss surgery be covered by Workers' Comp, too? According to at least two state courts, the answer is yes.
Case #1: A cook at a pizzeria was hit in the back by a freezer door. To relieve his pain, doctors needed to perform back surgery. The surgery, however, wouldn't be effective unless the cook first had surgery to reduce his weight, which went from 340 pounds to 380 pounds after the accident. The pizzeria refused to pay for the bariatric surgery, which was estimated to cost between $20,000 and $25,000, because the cook was obese prior to the accident. Said the Indiana Court of Appeals: The cook's weight and the accident "combined to create a single injury"; therefore, the pizzeria must pay for the weight-loss surgery. (Boston's Gourmet Pizza v. Childers, IN App. Ct., No. 93A02-0902-EX-176, 2009)
Case #2: The Oregon Supreme Court ruled that an employer was responsible for paying for an employee's gastric bypass surgery. The employee injured his knee on the job in 1976. By 2000, he needed knee replacement surgery. To be eligible for knee surgery, he needed to lose weight. The company objected to paying for the weight-loss surgery because the surgery was "directed at" his obesity (which pre-dated the 1976 injury), and not the workplace injury itself. Said the court: "The fact that the gastric bypass also treated the claimant's morbid obesity as a necessary incident of effectively treating his knee condition does not affect the resolution of the compensability of his medical services claim." (SAIF Corp. v. Sprague, OR Sup. Ct., No. SC S056541, 2009)
New Workers' Comp Worry For Employers?
"From an employer's perspective, these are very troubling rulings. They have scary implications for employers," said Richard Meneghello, managing partner, Fisher & Phillips LLP (Portland, OR). He noted that for years the courts and the Equal Employment Opportunity Commission (EEOC) have advocated keeping separate an employee's personal life from their professional one. "Now, employers are on the hook for personal lifestyle choices."
"On a legal level, both decisions appear to be compliant with existing law. That does not, however, make the decisions right, just legal," said Don Herrmann, President/Owner of THCG, an HR consulting firm (Fond du Lac, WI). "Workers' Compensation law needs serious review in all states and jurisdictions. It has gone well beyond the intent when these laws were created, and we now have a system easily manipulated by both employer and employee."
Only time will tell whether other states will follow along. Meneghello speculated that once doctors learn that weight-loss surgery may be covered by Workers' Comp, they may advise their overweight patients to look into filing a WC claim if their work is affected by their weight. However, he also feels that "the average employer shouldn't worry that this will happen" to them, because such rulings, while "shocking," are "very rare."
Worries Beyond Workers' Comp
Despite Meneghello's reassurance, some small employers might shy away from hiring overweight applicants in the first place. Overweight employees have very little protection from employment discrimination outside of the few states/localities that prohibit discrimination based on appearance or weight. According to the EEOC, being overweight, in and of itself, generally is not an impairment under the Americans with Disabilities Act (ADA). However, morbid obesity — a weight 100% above the individual's optimal weight — is an ADA impairment. Important: An individual who is obese, but not morbidly obese, may qualify for ADA coverage if the obesity is caused by an underlying physical disorder.
To avoid landing in a potential ADA mess, concentrate on essential functions when making a hiring decision. "Focus on the ability to do the job and not on perceptions about what the individual looks like," said Meneghello.
"Look closely at job requirements and qualifications, giving special attention to the work environment; lifting, pulling, and pushing requirements; and general mobility requirements," added Herrmann.
For additional information about weight discrimination, read Weight Discrimination In The Workplace: Realities And Legalities.
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