Last week, I was very pleased to be a part of an Orlando, Florida risk management conference sponsored by Artex Risk Solutions. Along with two good friends and colleagues, Rebecca (Becki) Shafer, J.D., President of Amaxx Risk Solutions, Inc., author of Your Ultimate Guide to Mastering Workers’ Comp Costs, and Brad Bleakney, experienced trial lawyer and workers’ compensation law expert, of Bleakney & Troiana (Chicago), I participated in two panel discussions on “Cutting-Edge Ideas for 2014,” as well as a “fireside chat” during the cocktail hour before one of our dinners. The three of us were also joined by board-certified physician (occupational medicine), Jennifer Christian, M.D.–expert in all things medical regarding the workplace–and by indefatigable David DePaolo, J.D., president and CEO of WorkCompCentral. We covered a number of important topics during our sessions. One that seemed to resonate strongly among the attendees was our discussion of chronic and co-morbid conditions.
“Chronic and Co-Morbid” Conditions
I would defer to Dr. Christian, who set so well the medical context for each of our panel discussions, but by “chronic,” we generally mean a condition that is not curable. By “co-morbid,” we generally mean the all-too-common situation in which an employee suffers a work-related injury or occupational disease while he or she simultaneously suffers from a preexisting, separate, chronic, medical condition unrelated to the workplace–e.g., diabetes, aging, cigarette smoking and/or obesity. Practitioners, claims adjusters/ managers, employers, judges, and administrators must all come to grips with the legal implications of co-morbidity since, as is often said, “the employer takes the employee as it finds him or her” [see Larson’s Workers’ Compensation Law (“Larson”), § 9.02].
Obesity: One of the Most Common Co-Morbid Conditions
All too often these days, the employer “finds” an employee who is chronically overweight. Indeed, according to the Centers for Disease Control, more than one-third of today’s U.S. adults (35.7%) are obese. According to one report by the Harvard University School of Public Health, the estimated annual medical cost of obesity in the United States is almost $200 billion.
Bariatric Surgery to Treat Co-Morbid Obesity
And if the employer “takes” the employee as it finds that employee, the employer may now be called upon “to take” the employee all the way to the operating room for expensive bariatric surgery (e.g., Lap Band, sleeve gastrectomy, and gastric bypass surgery). While the price range for such procedures varies with the type of treatment, the location of the medical facility, and the general health of the patient, according to one obesity web site, the most-often quoted surgery price is $22,000. What are the rules that guide an employer or carrier in determining whether it must bear the cost of such an expensive–and not always successful–medical procedure? As I tried to point out last week in Orlando, the search for answers begins with the relevant state Comp Act.
“Prompt, Adequate and Reasonable” Medical and Hospital Services
While there are some surprising variations in statutory treatment among the states, in general, employers must provide an injured worker with “prompt, adequate and reasonable medical and hospital services [see Larson, § 94.01, et seq.] Some statutes, like North Carolina’s, are remarkably simple (and, therefore, remarkably ambiguous):
Medical compensation shall be provided by the employer.
N.C. Gen. Stat. § 97-25(a).
To handle the ambiguity, courts must carve out reasonable limits. For example, a North Carolina court has held that implicit within the authority accorded to the state’s Industrial Commission to order or allow compensation under the statute is the requirement that the compensation and treatment be directly related to the compensable injury [see Peeler v. Piedmont Elastic, Inc., 132 N.C. App. 713, 514 S.E.2d 108 (1999)].
An adjacent jurisdiction, South Carolina, uses the relatively common “effect a cure or give relief” test. It is much more specific, yet has the potential for severely limiting workers’ compensation benefits for care that is “merely” palliative:
(A) The employer shall provide medical, surgical, hospital, and other treatment, including medical and surgical supplies as reasonably may be required, for a period not exceeding ten weeks from the date of an injury, to effect a cure or give relief and for an additional time as in the judgment of the commission will tend to lessen the period of disability as evidenced by expert medical evidence stated to a reasonable degree of medical certainty.
S.C. Code Ann. § 42-15-60 (2012).
Non-Surgical Weight Reduction Programs as Medical Care
Co-morbid conditions, particularly obesity, often extend the recuperative period following a work-related injury. They can make any necessary surgical intervention much more difficult, sometimes impossible. They limit the employee’s rehabilitation; they make return-to-work programs much more difficult to manage. It should, therefore, come as no surprise that weight loss programs short of actual bariatric surgery have been approved by courts in many states for some time.
For example, in Braewood Convalescent Hosp. v. Workers’ Comp. Appeals Bd., 34 Cal. 3d 159, 666 P.2d 14, 193 Cal. Rptr. 157, 48 Cal. Comp. Cases 566 (1983), the California Supreme Court affirmed an award for an injured worker’s post-injury participation in a self-procured weight reduction program located in North Carolina, as well as temporary disability compensation during his participation in the program, and associated expenses. The court observed that three physicians had directed the worker to lose weight in order to aid in the cure of his industrial injury. Although the court indicated the employer initially had the right to direct the worker to a specific program, under the facts of the case, it lost that right by failing to identify and offer such a program. The court also held that the employer failed to show that treatment at the program was unreasonable as to cost or location, whereas applicant showed that the location was reasonable in light of his lifelong obesity problem and lack of success with traditional weight loss methods.
Courts in a number of other states have similar rulings. For example, in Fontenot v. Citgo Petroleum Corp., 529 So. 2d 69 (La. Ct. App. 1988), a Louisiana court held that an employer should be required to pay not only the cost of an exercise program at a local YMCA, but a reasonable allowance for expenses in attending the sessions [see also Simmons v. Louisiana Health & Human Resources, 502 So. 2d 187 (La. Ct. App. 1987)]. A court in Ohio [see State ex rel. Miller v. Industrial Comm’n, 71 Ohio St. 3d 229, 643 N.E.2d 113 (1994)], relying heavily on an Oregon decision [Van Blokland v. Oregon Health Sciences Univ., 87 Or. App. 694, 743 P.2d 1136 (1987), held that, at least in certain situations, the cost of weight-loss programs could and should be authorized. Chiefly, the treatment could not be merely palliative; the weight loss must actually improve the claimant’s condition.
South Dakota has a similar holding [see Krier v. John Morrell & Co., 473 N.W.2d 496 (S.D. 1991)], where an award of compensation for weight-loss program was affirmed. The initial compensable injury was to claimant’s knee. As a result of the knee injury, claimant led a more sedentary lifestyle, causing him to gain weight and to increase the stress on his knee.
Courts have not been unanimous, however. For example, in one Utah decision, Clark v. Interstate Homes, Inc., 604 P.2d 937 (Utah 1979), the court found that treatment at a weight loss clinic, for a claimant with back and leg problems, was not within “medical, nurse and hospital services,” unless actual medical necessity was demonstrated. Denial of payment for the treatment was accordingly upheld.
Compensability of Bariatric Surgery to Accomplish Necessary Weight Loss
Minnesota: First State to Award Bariatric Surgery
Notwithstanding the significant difference between the cost of ordinary non-invasive weight loss programs–on the one hand–with that of significantly invasive surgical procedures, such as gastric bypass surgery–on the other–most courts that have addressed the issue of compensability have required the employer/carrier to bear the cost of requested surgical intervention.
A Minnesota decision, Hopp v. Grist Mill, 499 N.W.2d 812 (Minn. 1993), appears to be the first appellate decision to award the cost of bariatric surgery. The court held that the cost of gastric bypass surgery was compensable since the surgery was for the purpose of treating a deep venous condition in claimant’s right leg that had been caused by her work-related accident. That the work-related injury might not have caused the thrombosis if the claimant had not been obese was not important, indicated the court. That the surgery addressed other health problems caused by the claimant’s obesity, and not by the accidental injury itself, did not affect claimant’s right to compensation.
Note that in an earlier Minnesota decision, Adkins v. University Health Care Center, 405 N.W.2d 231 (Minn. 1987), where gastric bypass surgery was held not to be authorized, the court did not find that bariatric surgery was impermissible as a workers’ compensation medical benefit. It merely held that the lower court’s determination that the procedure was not reasonable or necessary, under the circumstances, was supported by the evidence.
In PS2, LLC v. Childers, 910 N.E.2d 809 (Ind. Ct. App. 2009), lap band surgery was awarded to a twenty-five year old employee who, at six feet tall and 340 pounds, was morbidly obese. He also smoked some 30 cigarettes per day. A physician indicated that the employee needed neurosurgical intervention for an industrial injury to his back, but could not recommend it based on, among other issues, the employee’s weight. Quoting Larson, the appellate court held that the employees’ pre-existing condition–his obesity–combined with the industrial injury–being struck in the back by a freezer door–combined to produce a single injury.
In a relatively recent New York decision, Matter of Laezzo v. New York State Thruway Auth., 2010 N.Y. App. Div. LEXIS 1839 (Mar. 11, 2010), the appellate court affirmed an award requiring an employer to pay for gastric bypass surgery, finding that substantial evidence supported the injured worker’s contention that significant weight loss would lessen pain associated with his compensable back and knee injuries, and that the only practical way to attain such weight loss was through the surgery.
In a series of opinions, culminating in 2009 [see In re Compensation of Sprague, 346 Ore. 661 (2009)], the court eventually concluded that the gastric bypass surgery was compensable. An injured worker’s physician recommended that the worker lose weight before a knee replacement procedure. The worker sought approval of the gastric bypass surgery, but it was refused by the workers’ compensation carrier. The Supreme Court of Oregon agreed with the conclusion that the bypass surgery was compensable under Or. Rev. Stat. § 656.245(1)(a), holding that the worker’s arthritic knee condition was a consequential condition that, as acknowledged by the insurer, was caused in major part by the worker’s compensable injury. The court added that the evidence demonstrated that the bypass surgery was “directed to” the worker’s current arthritic knee condition: the surgery was performed as part of the treatment intended to ameliorate the worsening condition of his knee, and the weight loss was necessary to the effective treatment of his knee. Therefore, the claim for bypass surgery should have been allowed. The fact that the gastric bypass also treated the worker’s morbid obesity as a necessary incident of effectively treating his knee condition did not affect the resolution of the compensability of his medical services claim.
Denials on Facts
Bariatric surgery has been denied in a few cases, but not conceptually–merely on the facts of the particular case. For example, in Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232 (2005), the employee sought benefits for gastric bypass surgery, which he contended was medically necessary because his weight precluded him from undergoing the surgery which was necessary to treat his work-related injuries. The compensation court upheld the employer’s objection to liability for this treatment, noting that while future medical benefits had been awarded, the record “‘at this point’” did not establish that the gastric bypass surgery was necessary to treat the work-related injuries. The court, therefore, concluded that the denial was not clearly erroneous.
It is important to note that the Nebraska court went on to say that implicit within its holding was that if medical necessity had been established by the employee, the gastric bypass surgery would have been compensable notwithstanding the fact that it was not specifically included in the award of future medical expenses.
Somewhat similarly, in an Iowa decision, Verizon Bus. Network Servs., Inc. v. McKenzie, 2012 Iowa App. LEXIS 855 (Oct. 17, 2012), the court ultimately found that gastric bypass surgery was not beneficial to the worker and reversed an award. The court indicated that the injured worker offered no evidence, other than her own testimony, that her gastric bypass surgery–already performed–had been beneficial to the treatment of her work-related injury. The injured worker underwent the surgery some six years after a slip and fall injury that left her unable to return to work. Following the surgery, the worker managed to lose 241 pounds. She sought to reopen her claim to recover the costs of the surgery, among other things. The appellate court agreed that the surgery and subsequent weight loss was undoubtedly beneficial to her overall health, but indicated that such an improved overall health status was not the standard to be used in determining whether the cost of a specific medical expense should be borne by the employer or carrier. The court found that while the gastric bypass surgery corrected her non-work-related morbid obesity, it did not provide a more favorable medical outcome for the work injury than would likely have been achieved by the care offered by the employer–care that had been accepted by the worker both before and after the weight-loss surgery. Again, while the particular worker lost her case, the court did not dismiss the concept of bariatric surgery as a compensable medical expense.
Perhaps the closest case to an outright denial is a relatively early (“early” in the sense that bariatric surgery did not come into common use until the last decade of the Twentieth Century) decision from Arkansas, Shepherd v. Van Ohlen Trucking, 49 Ark. App. 36, 895 S.W.2d 945 (1995), in which the court affirmed a decision finding the worker’s request for gastric bypass surgery was not a reasonable and necessary medical treatment.
Where Are We Heading?
As noted above, there is variability among the states in the statutory definitions of compensable medical care. For example, New York’s Laezzo decision, noted above, was based upon NY CLS Work Comp § 13, which generally requires the employer to provide prompt medical care “for such period as the nature of the injury or the process of recovery may require.” Perhaps you disagree, but I think a court could more easily find that an injured employee’s “process of recovery” might require bariatric surgery than might a court in a state, such as that from South Carolina, whose more restrictive standard speaks to “effect a cure.” We’ll, of course, have to wait and see.
Employers and carriers are caught in a bit of a societal no-man’s-land. On the one hand, the strength of our economy has, in large part, been built upon the skills, drive, intelligence, and effort of a resilient work force. Employers have profited in the past because they “took employees as they found them.” They often “found them” to be talented, skilled, energetic, hard-working, and competitive. On the other hand, those same employees continue to have an admixture of co-morbid conditions, such as obesity, that can complicate the treatment required for work-related injuries, lengthen the recovery time in many instances, and even prevent treatment toward recovery in others. Employees bring a mix of characteristics to the job. As medical expertise and techniques such as bariatric surgery make possible the treatment of co-morbid conditions, employers and carriers will likely be forced to bear a significant share of the cost and expense.