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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

ADVERTISEMENT