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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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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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