Legal Lines


CASE ALERT! Employer held liable for employee weight reduction surgery.

By Kathy Shortridge Attorney at Law - Ice Miller LLP
| Date: 11/01/2009

A recent decision from the Court of Appeals is causing great concern among employers and their attorneys because, if upheld, it is likely to greatly increase your medical costs and the claims you have to cover.  The case, Boston Gourmet Pizza v. v. Childers, 2009 Ind. App. LEXIS 1241 (Ind. Ct. App. 2009), involved a morbidly obese employee who had a back injury.  The physician decided that the claimant required back surgery, but that it was too risky due to his obesity.  The Worker’s Compensation Board ordered the employer to provide bariatric lap band surgery, to pay temporary total disability while he had the surgery and was recovering and losing weight, and then presumably to provide the back surgery.

Briefly, the Board, and the Court, held that the obesity combined with the work-related low back injury to create a “single injury,” obesity-complicated back pain.  Based on certain precedents, it concluded that where two conditions, one work-related and one not combined, to create a single injury, the employer is responsible for the total result.

We are very concerned about this case, which seems to overturn entirely the long line of cases which have held that the Worker’s Compensation Act does not make the employer the group health insurer for all of its employees.  Further, the extension of this rather dubious single-injury theory to two completely unrelated conditions seems unfortunate.  We have spoken to defense counsel in this case and understand that it is very likely that they will seek transfer to the Supreme Court of Indiana.  We are encouraging our clients who are members of industry groups to talk with their groups about this case and to consider joining an amicus brief before the Supreme Court to assist the court in evaluating the impact of this decision.