ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

ADVERTISEMENT