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Workers' comp cases question line between employer liability and employee responsibility

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In June, the Superior Court of New Jersey, Appellate Division, affirmed the finding of a workers’ compensation judge who ruled that a man whose wife died of a pulmonary embolism while working from home was entitled to workers’ compensation survivor benefits. In Renner v. AT&T, No. A-2393-10T3, a doctor admitted that other factors – including obesity – may have been risk factors for developing the fatal blood clot. But the court ultimately agreed that working long hours is what caused her to develop the condition.

hamilton-linda Hamilton

Cases like this bring to light questions about where an employer’s liability ends and an employee’s responsibility begins. Nationwide, obesity rates continue to climb, and with evidence to support that obese workers are more likely to be injured on the job – and may take longer to recover than non-obese people – the question of liability may come up more often in courtrooms.

Flexible precedent

In 2009, the Indiana Court of Appeals affirmed a decision by the state’s Worker’s Compensation Board requiring an employer to pay for an injured employee’s weight-loss surgery. In the case of PSC LLC d/b/a Boston’s Gourmet Pizza v. Adam Childers, No. 93A02-0902-EX-176, the appeals court affirmed the board’s decision that the employer was liable for Adam Childers’ lap-band weight-reduction surgery, as Childers’ surgeon said that without the operation, back surgery could be unsuccessful.

Ty Craver, an attorney who handles workers’ compensation defense for the Indianapolis firm Hill Fulwider McDowell Funk & Matthews, remembers the case well.

“That case got a lot of play nationally – Indiana

work comp doesn’t usually get national attention,” he said. “The concern was it was going to promote a chilling effect” about who employers might hire, possibly leading to employers preferring to not hire overweight workers.

Ft. Wayne attorney Linda Hamilton, chair of the Indiana Worker’s Compensation Board, said that all workers’ compensation claims are considered on a case-by-case basis. Because Childers’ employer was held to be liable for his weight-loss surgery doesn’t mean all employers will find the same rules apply in their distinct situations, she said.

Craver said he thinks the compensation board has done an excellent job in not “drawing a bright line” that determines how they will rule on a particular case.

“It’s tough to know where that line is,” he said. I’ve had cases where you have a very compensable injury and you have someone that’s overweight and they have to continue to be on TTD (temporary total disability) for a longer time.”

Judy Pippin of Carmel firm Wagner Reese & Crossen said, “Obviously you hired this person – it would be really unfair and unfortunate to try to hold something against them that you knew when you hired them. You have to provide medical treatment for the work injury, and if things are complicated because of the employee’s own body, you have to accept that and go forward,” she said.

More injuries, more time

Duke University researchers in 2007 reported that obese workers, compared to non-obese workers, filed twice the number of workers’ compensation claims, had seven times higher medical costs from those claims, and lost 13 times more days of work from work-related injury and illness. The results of the study were published in the April 23, 2007, edition of Archives of Internal Medicine.

In the past 20 years, obesity in the United States has increased dramatically. According to the Centers for Disease Control and Prevention, in 2000, only 22 states had a prevalence of obesity of more than 20 percent. By 2010, no state had a prevalence of obesity less than 20 percent, and Indiana’s obesity rate was between 25 and 29 percent. Those statistics would seem to suggest that the nation’s workforce is becoming more obese, and that as a result more workplace injuries are occurring. But if that’s happening, attorneys aren’t seeing complicated employer liability issues playing out in court – at least not yet.

Craver said in the 13 years he has practiced law, he’s seen only a handful of cases in which obesity played a role in workers’ compensation.

“I don’t see it that often, but when you start reading the newspaper, and on the daily news you start seeing … how our obesity rated, it’s one of those problems where I think we’ll be seeing more of it,” he said of workers’ compensation cases that end up in court.

Striving for a healthier workforce

“Many forward-thinking employers provide incentives for their employees to be healthy by offering weight loss programs and/or bonuses for participation in exercise programs,” Hamilton said.

Pippin said she thinks employers may be taking more preventative steps in dealing with obesity, rather than letting issues play out in court.

“In workers’ comp, it’s sort of like the employer takes the employee as they find them. And I think now a lot of employers are initiating healthy living,” she said. “I know a lot of places are giving discounts on health insurance – if your blood pressure, that kind of thing – are in good shape.”

Craver agrees that one of the best steps an employer can take to head off problems related to obesity is to think about the health of its workforce.

“The employers should try to be as proactive as they can, and I think one of those things is wellness programs and incentives for employees to have wellness on their own,” Craver said. In his own firm, management is planning for a comprehensive employee wellness program.

“We’re looking at it as ways to reduce insurance premiums – and there’s that good intangible benefit of them being healthier,” Craver added.•

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