 Employer must pay for weight-loss surgery
By CHARLES WILSON (AP) – 2 days ago
INDIANAPOLIS — An Indiana court has ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work — raising concern among businesses bracing for more such claims.
The Indiana Court of Appeals decision, coupled with a recent Oregon court ruling, could make employers think twice before hiring workers with health conditions that might cost their companies thousands of dollars at a shot down the road.
"This kind of situation will happen again ... and employers are undoubtedly worried about that," said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J., an offshoot of the American Civil Liberties Union.
Boston's The Gourmet Pizza must pay for lap-band surgery for Adam Childers, a cook at the store in Schererville, under last month's Indiana ruling that upheld a 4-3 decision by the state's workers' compensation board.
Childers, who was then 25, weighed 340 pounds in March 2007 when he was accidentally struck in the back by a freezer door. Doctors said he needed surgery to ease his severe pain, but that the operation would do him no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident.
His employers agreed to pay for the back surgery, but argued they were not obligated to pay for a weight-loss operation that could cost $20,000 to $25,000, because Childers already was obese before he was hurt.
The board and the court, however, said the surgery — and disability payments while Childers was unable to work — were covered because his weight and the accident had combined to create a single injury. They said Boston's didn't present any evidence that his weight had been a medical problem before the accident.
Boston's attorney, Kevin Kearney of South Bend, said the company has asked the court to hear the case again. He declined to comment further. The Dallas-based company, which has more than 50 franchise stores in 25 states, also declined to comment Wednesday. A message seeking comment also was left with the restaurant in Schererville.
"There's actually a string of cases across the country that have reached similar conclusions," said Childers' attorney, Rick Gikas of Merrillville. He cited cases in Ohio, California, Oregon, Florida and South Dakota, including some dating back to 1983.
The most recent was in Oregon, where the state's Supreme Court ruled Aug. 27 that the state workers' compensation insurance must pay for gastric bypass surgery to ensure that a man's knee replacement surgery was effective.
But some believe the Indiana case — which experts said reflects general rules of workers' compensation law — could have a chilling effect on business.
"The case in Indiana kind of draws a line in the sand," said Tom Lynch, CEO of Lynch, Ryan & Associates Inc., a Wellesley, Mass.-based consulting firm that helps businesses manage workers compensation.
What's different, he said, is that it was based not just on state law but on principles used in several states.
"I think employers are going to be really upset about this," said Maltby, whose group generally advocates for workers.
Part of the reaction stems from people's attitude to obesity, he said. "Because we all think it's his own fault for being so fat, and it's such an expensive procedure, a lot of people would say it isn't fair to the employer."
Gikas said Childers has lost some weight on his own during his two years off. Court records said he had also tried to quit smoking. He's still awaiting the surgery.
Lynch said the ruling could make employers wary of hiring people who are overweight or have other conditions that might expose them to workplace injury. He noted that employers in all 50 states must take workers "as they are" when they hire them.
"Legally, you cannot refuse to hire this 350-pound person because they're 350 pounds. That's illegal. But you might find some other reason not to hire them," he said.
Both Lynch and Maltby said the issue won't go away soon, in part because one-third of American adults are considered obese, with a body mass index of 30 or more. The index is based on height and weight. Last year, at least 220,000 obesity surgeries were done in the United States, says the American Society for Metabolic & Bariatric Surgery.
And Lynch said the ruling could have repercussions beyond obesity and weight-loss surgery.
"Who among us does not have some kind of situation that either now or in the future ... could contribute to an injury?" he said. "This could be a big deal."  | 
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