Court Says Employer Must Pay For 340-Pound Employee's Weight-Loss Surgery

[Dos Equis]

 

Court Says Employer Must Pay For 340-Pound Employee's Weight-Loss Surgery
Huffpost - Court Says Employer Must Pay For 340-Pound Employee's Weight-Loss Surgery

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."

http://www.huffingtonpost.com/2009/09/10/court-says-employer-must-_n_282676.html

[George Whorewell]

For all my attorneys ( or imaginary internet attorneys)-- The egg shell skull plaintiff rule is the norm in both civil and criminal law in America. You take your plaintiff as you find them. If you negligently left a bananna peel on the floor and some asshole slips on it and by chance his bones are being held together with paper mache and he shatters into a thousand pieces, you can be sued for wrongful death if he dies as a result. Pre-existing conditions no matter how acute or exotic ( even if self imposed like obesity) don't mitigate the damages you can be required to pay. As long as the elements of negligence are proven- ( duty, breach of a duty, actual cause, proximate cause and damages) it is irrelevant how absurd or expensive the judgement entered against you is.  With workers comp, the standard is even lower. As long as you were injured on the job and acting within the scope of your employment ( even if you were intoxicated, or joking around with a co-worker), you are entitled to all medical expenses and lost wages. However, you get nothing else and you cant sue your employer for any additional damages (except in extremely narrow circumstances).

Im not surprised that workers comp ( which is the norm and sole source of recovery for practically all work related injuries suffered on the job except for teachers, members of the clergy and independent contractors) manufactured the resulting judgement. I dont know what the law is wherever that lard ass was injured, but if I was the employer I would try to seek some sort of contribution (partial relief of the expense) or indemnification (100% rembursement) from either the individual that injured the employee, the manufacturer of the oven that hit him, or anyone else to soften the blow.

Either way, this is a fucked up and inequitable outcome based on the facts in the article. If and only if the dude who got injured was just minding his own business and a pizza oven fell on him, and no surgery in the absence of the weight loss procedure would bring him back to normal, then it stands to reason that the employer should pay. However, absent that situation its insane that the employer should have to foot the bill here.

[Skip8282]

In my state, an aggravation of a pre-existing condition is a compensable injury.  So when the freezer door hit him in the back, it doesn't matter if it hit light or hard, if it caused that fat bastard's weak back to give out, then it's compensable.

And the only way I ever see that changing is with sweeping changes to the worker's comp laws which I don't see happening in the near future.

[George Whorewell]

WC is a double edged sword in a lot of ways. It's bad because of situations such as this one- but it also insulates employers from any punative damages, special damages ( such as for loss of consortum ( no sex) if the employees wife leaves him as a result of his injury) and other windfalls for plaintiffs and their attorneys.

In most states, if an injured employee decides to sue a third party for a work related injury ( like the fat ass in this situation suing the oven manufacturer for instance) the employer CANNOT be impleaded into the action, meaning the manufacturer cannot get contribution or indemnity from the employer even if the employer was a contributing factor ( or even the primary factor) in the employees injury. In NY the only exception to that rule is if "Grave Injury"  is suffered by the employee-- including but not limited to paralysis, death, loss of a limb, blindness etc.  

WC is good in that its a fail safe for people injured on the job and it insures that those who are hurt at work dont starve to death or have to declare bankruptcy. Its bad because it lets employers off the hook a lot, it is abused constantly by dead beats looking to get paid to stay home and it is allowed under way too many circumstances. There was a case not too long ago, where some assholes who worked cleaning up at a baking factory thought it would be funny to jump into one of the giant batter mixers and play hide and seek. One accidently turned on the mixer and ended up maiming the other guy. The court actually awarded WC for the injured worker because ( and I could have screwed up the details) the injury took place during work hours while the employees were performing their duties.

The two most common situations that have been litigated where WC has been denied= An off duty recreational activity with co workers ( such as a company softball game) or purposefully injuring another worker or having a worker injure you.

[240 is Back]

the lesson here?  Don't hire weak 340 pound people to work in a place with swinging pizza doors.

[OzmO]

This is F-ing ridiculous, the courts encourage more deflection of personal responsibility and make it harder for business.

[pedro01]

Childers, who was then 25, weighed 340 pounds in March 2007 when he was accidentally struck in the back by a freezer door.

Sadly, the door didn't make it 

[pedro01]

For all my attorneys ( or imaginary internet attorneys)-- The egg shell skull plaintiff rule is the norm in both civil and criminal law in America. You take your plaintiff as you find them. If you negligently left a bananna peel on the floor and some asshole slips on it and by chance his bones are being held together with paper mache and he shatters into a thousand pieces, you can be sued for wrongful death if he dies as a result.

It is interesting. In your example, it's the dropping of the banana peel that is negligence.

Why does the punishment fit the outcome & not the crime in this case ? It's almost as if it's being treated like assault.

[George Whorewell]

Because if the elements of negligence are proven in the aforementioned example, then the defendant is liable for ALL resulting damage no matter how extensive and far reaching the damage award turns out to be.

If I negligently dropped the bannana peel, meaning I owed the general public (for example) a duty of care to act as a reasonably prudent person would under similar circumstances (we should all be mindful if where we throw bannana peels) and I breached that duty (I should have thrown the peel in the trash), then the only question becomes one of causation. Was my dropping the bannana peel the actual cause of the injury you suffered? Meaning, but for me dropping the peel, would you have been injured? If the answer is no, then the final inquiry is whether or not the breach of the duty I owed was the proximate cause of your injury. To put it simply, is it fair to hold me accountable for your injury because the injury you suffered was the foreseeable result of my actions?

If a jury thinks so, and damages can be proven, then thats the end of the story. You pay for the back surgery, the liposuction, the hairplugs and a free vacation to Hawaii [ if they can be proven as damages suffered as a result of your actions.]

To get more technical, the majority of states have pure comparitive negligence whereby the jury will apportion fault upon any number of plaintiffs or defendant participating in the lawsuit. Any award would be reduced depending on the level of comparitive fault. There are a shitload of other rules, but the short version is that juries are unpredictable, lawyers are bullshit artists and the American legal system allows a plaintiff to go after the jackpot for every injury.

With workers comp though, its alot more cut and dried- no jury because the WC administrative board decides and its really the only way to recover from your employer for being injured on the job.  

Pedro- To give you a similar idea in terms of a criminal case; If I throw an empty plastic soda bottle intending to hit a buddy of mine, and I miss and it hits grandpa who has a brain anuerism and dies, I can be charged with criminally negligent homicide. Or, for a more realistic situation, if I get into a fist fight and accidentely hit someone innocent while defending myself, and that person later dies of their injuries, I will likely be charged with murder, not assault. The act of the punch isnt the crime, just as the dropping of the bannana peel isn't in and of itself negligence ( remember that DAMAGE is an essential component of negligence and you cant have a negligence case without it). Bare in mind that there are also more complicated legal principles at work  ( which exist in both tort and criminal law) such as the concept of "transfered intent"-- If I intend to hit A, but I hit B, I am charged with the same crime as against B as if I intended to hit B. But thats a long ass and seperate discussion.
 In summation, it is the result-- iE- The innocent bystander I accidentely punch in the nose turns out to be a hemophiliac and they bleed to death before EMS arrives OR the incredibly sick old person who slips on the bannana peel and dies from their injuries- that is the basis for the civil suit Or the basis for the criminal charge.