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By CYRIL TUOHY, managing editor of Risk & Insurance®

Consultants and risk managers last month could only stare, mouth agape, at yet another seemingly absurd court decision favoring an obese victim at the expense of his employer and its workers' compensation insurance carrier.

"Oh, my God," said the risk manager for one national restaurant chain, when told of the decision. "That's just ridiculous. I just think that's out there. How is it that the employer got stuck with that?

"We've lost our minds," he continued. "If I was the risk manager, I'd be fighting tooth and nail, and I'm sure they are."

Kevin Kearney, an attorney for Boston's, declined to comment beyond saying that he had asked the court to hear the case again, according to media reports. Gastric bypass surgery typically costs about $20,000 to $25,000.

The outcome in the Childers case might have created ample fodder of cartoonists, were it not for the fact that so many people in America are obese. The financial implications for comp carriers are sobering, according to one workers' compensation consultant.

"Obesity is going to be a problem and one going forward, so when you have a soft-tissue injury like a knee or an elbow, they are going to require more than just trying to fix the back," said Tom Lynch, president of Lynch Ryan & Associates, a Wellesley, Mass.-based workers' comp consulting firm.

PRECEDENT SET

This case will set a precedent, and courts are bound to come to the same conclusion in similar cases, according to Lynch.

"There's going to be a lot more of it because we have a lot more obesity and diabetes," he said. "I don't recall if Childers is diabetic, but if he's not, now he will be and that will complicate his healing. This is what my friend referred to as a 'horrendoma.' "

In fact, precedents already exist, according to Childers' attorney, Rick Gikas, who was quoted in news reports. He cited precedents in Ohio, California, Oregon, Florida and South Dakota.

Lewis Maltby, president of the nonprofit National Workrights Institute in Princeton, N.J., said the case was a "very unusual situation," noting that employers were not going to be pleased by this latest Indiana decision.

"I've never seen a case like this before," said Maltby, a former corporate attorney. "It's never happened to me."

He also predicted that these kinds of cases would become more common as the country ages and chronic health problems spread.

Lynch also said that, because workers' comp statutes were similar from one state to the next, the Indiana decision will easily be applied to similar workers' compensation cases pending in other states.

In an Aug. 6 decision, the court affirmed the Workers' Compensation Board ruling in favor of Childers.

"While weight-loss surgery was not in the first instance indentified as an a priori requirement for back surgery does not preclude it from being required as part of the injury received and the treatment required under the (Workers' Comp') Act," the court ruled.

Boston's argued that, because it was not responsible for Childers' obesity, it should not be responsible for gastric bypass surgery, which would allow the cook to safety undergo back surgery.

In addition to ordering Boston's to pay for gastric bypass, the appeals panel also ordered the company to pay for temporary total disability benefits as Childers prepares for and undergoes the weight-loss surgery as well as the back surgery.

September 29, 2009

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