Time to Start Watching the Weight in Worker’s Compensation Law
Obesity is expensive, and the worker’s compensation industry in America is not immune to its effects. This became abundantly clear over the past year, as two state courts awarded treatment expenses for claimants’ weight loss surgeries and a national study revealed that claims by obese workers can cost up to five times more than claims by those who are not obese.
These events thrust the nation’s weight problem into the spotlight of an industry that otherwise focuses on injuries to specific body parts. Obesity has long been a major concern in debates over health care policy, but its emergence as an issue in worker’s compensation has only just begun. As the rate of obesity continues to grow, it becomes more likely that defense practitioners will face obesity-related issues in the context of worker’s compensation law.
This article will outline the recently-revealed effects of obesity on the worker’s compensation industry and examine the reasons behind two courts’ decisions to award benefits for claimants’ weight-loss surgeries in Indiana and Oregon. The article will then analyze how Wisconsin worker’s compensation cases have addressed obesity and briefly explore how the approaches may need to evolve as obesity-related issues continue to emerge.
I. The Expanding Issue
Roughly one quarter of the American population is obese, and this number is growing. A recent study showed that obesity rates have increased in 23 states and decreased in none over the past year.
Wisconsin is one of the states that have rising numbers of obese citizens. Although Wisconsin’s increase over the past year was relatively slight, the upswing means that about 26% of the state’s four million adult citizens are obese.
The climbing trend for obesity has led to several creative programs to encourage people to lose weight and to help prevent more obesity. The overall goal behind these programs is to reduce the extra health care costs associated with obesity.
On the other side of the debate, advocacy groups and scholars have become increasingly vocal in questioning whether obesity should automatically be considered synonymous with unhealthiness.Some assert that obese people are “scapegoated” in health care decisions, and they argue against allowing any sort of discrimination based on weight.
Nevertheless, medical experts remain convinced that obesity is responsible for causing or exacerbating countless health problems. For purposes of worker’s compensation, the more troubling aspects of obesity are its link to joint problems and the greater risk that heavier patients pose to workers in the health care field who must handle them.
II. Worker’s Compensation Costs of Obesity
A. Comparative Costs of Obese and Non-Obese Claims
In September of this year, the National Council on Compensation Insurance (NCCI), a Florida-based research group, published a comparison of medical expenses for worker’s compensation claims of obese and non-obese workers in 36 states. The study included medical records spanning nine years, and the expenses were examined at three different points in the maturity of each claim. Based on observations at 12 months, 36 months, and 60 months after each injury, researchers found clear differences between the costs for obese and non-obese claimants.
For claims that required treatment beyond 12 months, the researchers found that obese claims were almost three times more expensive than non-obese claims. The difference climbed rapidly for claims requiring even longer treatment. At the three-year maturity level of claims, injuries by obese claimants cost 4.5 times more than those for non-obese claimants. The five-year maturity point showed that obese claims were 5.3 times more expensive than non-obese claims.
The NCCI study heavily referenced an earlier project that researchers at Duke University completed in 2007. The Duke study concluded that workers who were morbidly obese filed 45% more claims, missed eight times the number of work days and had medical costs that were more than five times higher when compared with non-obese workers.
While the NCCI and Duke studies had slightly different focuses, the overall findings of both were unequivocal in revealing that obesity has a costly effect on the worker’s compensation industry. Courts have now begun to directly address whether employers and insurers should bear the extra costs of obesity in worker’s compensation claims.
B. Compensable Weight-loss Surgeries
Within two months of each other this past fall, the Oregon Supreme Court and an Indiana Court of Appeals published opinions awarding worker’s compensation for surgeries that were undertaken specifically to help the obese claimants lose weight.
In an August 27, 2009 decision, the Oregon Supreme Court became the first to award compensation for a claimant’s gastric bypass surgery. At issue in the case, SAIF Corp. v. Sprague, was a state statute that addresses work-related “medical conditions” and the criteria for determining whether an insurer is responsible for medical services to treat those conditions. To be compensable under the statute, medical treatment must be “directed to” the work-related condition.
The claimant in SAIF had originally sustained a knee injury at work. His doctor recommended surgery but advised that this surgery would not be possible unless the claimant lost weight. Asserting that gastric bypass surgery was necessary for treatment of his knee injury, the claimant sought compensation for the weight-loss procedure.
The employer and insurer first argued that the claimant’s obesity, not the work injury, was the “medical condition” that would be addressed by the gastric bypass surgery. The court rejected that argument, stating that the statute contained “no requirement that the need for medical services be directly ‘caused by’ the original compensable injury.”
The court then went on to hold that the gastric bypass surgery was “directed to” the knee condition because it was a necessary prerequisite to effectively treating the knee problem. The Oregon statute, the court held, “does not limit the compensability of medical services simply because those services alsoprovide incidental benefits or help to treat other medical conditions that were not caused by the compensable injury.”
Less than two months after the Oregon case, an Indiana appeals court reached a similar decision to award benefits for a weight loss procedure, albeit via different reasoning. The claimant in Boston’s Gourmet Pizza v. Childers, was an obese pizza cook who sustained a lower back injury after a freezer door struck him from behind. Despite injections and other conservative treatment, the claimant’s back problems escalated. His doctor believed he was a candidate for a spinal fusion procedure but cautioned that the claimant’s size created a high risk of surgical failure.
Although the claimant attempted to slim down for the surgery, his injury made it impossible to exercise and he gained more weight instead. His doctor then referred him for lap band surgery to correct his obesity.
Noting the claimant’s failed efforts to lose weight on his own, the court awarded compensation of medical costs for the lap band surgery. In contrast to the Oregon court’s approach of focusing on whether the gastric bypass surgery was “directed to” the separate work injury, the Indiana court viewed this claimant’s need for weight-loss surgery as a condition that combined with the back problems to become one compensable injury.
The court emphasized that there was no evidence that the claimant’s weight problem impaired his health or required surgical intervention until after the workplace injury. Thus, the court’s finding of compensability was essentially based on a theory that the back injury caused the claimant’s weight problem.
While the Oregon and Indiana decisions may appear to provide a windfall for worker’s compensation claimants who might like to lose some weight, the most salient effects of the opinions have been to raise fears of discrimination against obese people in the workplace and in hiring decisions. This and other public policy consideration will certainly be instrumental in swaying courts to one side or the other in future cases involving obesity related issues.
III. Wisconsin’s Undeveloped Approach
Wisconsin’s courts and the Labor & Industry Review Commission (LIRC) have yet to closely scrutinize specific obesity-related treatment issues in worker’s compensation analyses. The issue of obesity does come up, but it is most often in terms of whether the applicant’s weight caused an injury. At this point, the cases leave only small clues as to how Wisconsin might confront cases like those in Oregon and Indiana.
A. Treating the Effects of an Injury
Section 102.42(1) of the Wisconsin’s Worker’s Compensation Act contains the language that would apply to the issues in the Oregon and Indiana cases. This provision states that an employer must supply an injured worker with such medical treatment “as may be reasonably required to cure and relieve from the effects of the injury.” This appears quite similar to Oregon’s statute regarding medical treatment “directed to” work-related medical conditions.
However, key differences in the language indicate that a Wisconsin court would not necessarily follow Oregon’s lead. Wisconsin’s statute is clear that the medical treatment must cure and relieve the effects of the injury. Thus, unlike the Oregon statute, Wisconsin’s language inherently requires that “the need for medical services be directly ‘caused by’ the original compensable injury.”
The distinction may be illustrated by considering the situation in ITW Deltar v. Labor & Industry Review Commission. In ITW Deltar, the applicant was pregnant when she sustained an injury to her knee at work. The injury required surgical intervention, but the applicant’s doctor advised that she delay the surgery until after the baby was born. The issue was whether the applicant was still entitled to indemnity benefits even though the pre-existing pregnancy prolonged her disability.
The Wisconsin Court of Appeals held that the applicant was indeed entitled to benefits. But what makes ITW Deltar interesting in comparison to the Oregon case is the apparent absurdity that would result if the court had awarded the applicant medical expenses for treatment associated with the pregnancy and childbirth. Arguably, such expenses would be “directed to” the knee surgery in the same way that the gastric bypass surgery was directed to the Oregon claimant’s injury. Yet in Wisconsin, it would be difficult to argue that the pregnancy is an “effect” of the injury.
The more plausible route to compensability for weight loss procedures in Wisconsin would be the Indiana court’s reasoning that the injury caused the weight problem. To the defense-side’s advantage though, causation for obesity is notoriously difficult to prove, and a dissenting opinion in Tutlewski v. Big Buck Building Center, suggests that significant weight gain at around the time of injury could actually bolster a theory that a weight gain caused the injury, rather than the other way around.
B. Taking the Employee “As Is”
In the majority of Wisconsin worker’s compensation cases involving obesity, courts and the Labor and Industry Review Commission examine the applicant’s weight in terms of whether it caused the injury or disability. The cases almost always apply the “as is” rule and the positional risk doctrine to find that an applicant’s obesity was legally inconsequential.
The “as is” rule simply holds that workplace injuries are compensable even if the worker had been especially susceptible or prone to such injuries. It works in tandem with the positional risk doctrine, which holds that a mere obligation to be at a certain place at a certain time can give rise to employer liability for workplace injuries, as long as some force outside the worker contributed to the injury.
For example, in Matts v. Dane County, the applicant suffered a back injury while rising from her seat on a picnic table at work. The employer asserted that her obesity and pre-existing back condition made her predisposed to a back injury. However, LIRC held that this could not overcome the fact that the shape of the picnic table required her to twist in an unusual manner such that her back began hurting in the process. The shape of the picnic table was enough for LIRC to find a compensable work injury despite the contribution by the applicant’s obesity.
A defense argument based on an applicant’s weight received more direct attention from LIRC in Van Laanen v. Agrilink Foods, Inc. In this case, the employer and insurer’s medical expert opined that the applicant’s weight caused her knee problems. LIRC responded that this theory was not a proper defense where the positional risk of having to walk around while on the job was what actually caused the weight to hurt the applicant’s knees.
C. Weight-loss failure: Unreasonable refusal to submit to treatment?
In the effort to identify the most promising line of defense against claims for medical treatment that specifically addresses obesity, it is tempting to turn to Wisconsin’s statutory provision that bars compensation where the applicant unreasonably refuses to submit to reasonable medical treatment.An applicant’s unreasonable refusal to follow competent and reasonable medical advice is not a condition that can fall under the “as is” rule.
A LIRC case that addressed the provision in the context of cigarette smoking provides some direction as to how it might play out as the basis for an obesity argument. In Viliunas v. Bob Radtke Inc., LIRC found that a doctor’s advice to quit smoking is “medical treatment” within the meaning of the statute. This suggests that advice to lose weight before surgery would also be considered medical treatment. The next step in the analysis would be to determine whether the applicant unreasonably refused or neglected to follow the advice to lose weight.
In the smoking case, LIRC could not find the applicant’s failure to quit smoking unreasonable. Smoking is addictive, LIRC reasoned, making it a difficult habit to give up even under the best of circumstances. Quoting a worker’s compensation treatise, LIRC’s opinion strongly suggested that obesity would be viewed the same way. “[P]erhaps because almost everyone has some personal experience of good-faith but ineffective weight-loss efforts,” the quoted portion read, courts “are reluctant to stigmatize these all-too-human failures as ‘willful refusal.’ ”
On the other hand, one case indicates that LIRC would not be quite as reluctant to consider weight loss failures if the issue is the extent of the applicant’s loss of earning capacity (LOEC). In Stuhr v. Dairyland Power Cooperative, the applicant’s doctor advised him to lose weight before he could get surgery that could improve his function. LIRC deferred an LOEC determination so that the applicant could lose the weight and get the surgery. If the applicant failed to lose weight, LIRC stated, his lack of effort to do so would be taken into account in the LOEC determination.
D. Looming Questions
In Viliunas, one reason LIRC did not find the applicant’s failure to quit smoking an unreasonable refusal is because the first time the doctor told him to quit, the advice came with no assistance. The doctor simply told him to attend a stop smoking seminar or take a smoking cessation medication. The applicant eventually quit once he received prescription medication for this purpose.
Like the ITW Deltar case, this situation leaves open whether the prerequisite treatment – in Viliunas, the smoking cessation medication – should be considered compensable medical treatment. The Oregon court’s reasoning provides that it should. The reasoning in the Indiana case raises some additional questions about whether Wisconsin courts may extend the “effects” of an injury to include behaviors such as smoking or gaining weight.
For instance, could an applicant successfully argue that the stress of an injury caused her to start smoking or to overeat, such that all of her smoking-related or obesity-related diseases should be “combined” with her other injury to create one compensable injury? Could an applicant successfully argue that unhealthy food options in the workplace created a positional risk causing obesity?
Wisconsin courts have yet to address obesity-specific questions in worker’s compensation law, but this silence may not last long. The growing population of obese adults in Wisconsin, along with increasing advocacy for health care equality regardless of weight, will likely force the issue into development. The frameworks that LIRC has used in addressing obesity as a peripheral issue are worth examining now to help prepare for the more contoured shaping of obesity policies in Wisconsin worker’s compensation law.
 See Eric A. Finkelstein, et. al., Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates, 28 Health Affairs (published online July 27, 2009).
 See infra notes 24-42.
 See infra notes 17-23.
 Roberto Cencineros, Obesity Supersizing Workers Comp Costs, Financial Week, March 2, 2009; see also Associated Press, As America’s Obesity Problem Grows, Ambulances are Starting to Charge More, Oct. 22, 2009.
 See U.S. Centers for Disease Control & Prevention, Overweight and Obesity: U.S. Obesity Trends, http://www.cdc.gov/obesity/data/trends.html.
 Trust for America’s Health & The Robert Wood Foundation, F as in Fat: How Obesity Policies Are Failing in America2009 3 available athttp://healthyamericans.org/reports/obesity2009/Obesity2009Report.pdf.
 See, e.g., Nat’l Center for Chronic Disease Prevention & Health Promotion, Obesity: Halting The Epidemic by Making Health Easier (2009) available athttp://www.cdc.gov/nccdphp/publications/AAG/pdf/obesity.pdf; The Healthier Wisconsin Worksite Initiative, http://dhs.wi.gov/health/physicalactivity/Sites/Worksite%20pdfs/NGAprojectsummaries.pdf; Steven A. Burd, How Safeway is Cutting Health-Care Costs, Wall St. J., June 12, 2009.
 Katherine Mayer, An Unjust War: The Case Against the Government’s War on Obesity, 92 Geo. L.J. 999, 1002 (June 2004); Rebecca Puhl & Kelly D. Brownell, Bias, Discrimination, and Obesity, 9 Obesity Res. 788, 789-90 (2001).
 Susan Saulny, Heavier Americans Push Back on Health Care Debate, N.Y. Times, Nov. 7, 2009.
 Supra notes 11 and 12.
 See Liz Kowalczyk, Obesity is fueling a rise in joint-replacement surgeries, The Globe, July 18, 2006; J.J. Anderson and D.T. Felson, Factors Associated with Osteoarthritis of the Knee in the First National Health and Nutrition Examination Survey (HANES I), 128 Am. J. Epidemiol. 179-89 (1988).
 See Ben Leach, Increasingly Obese Population Poses Challenges to Medical Facilities, The Press of Atlantic City, Oct. 20, 2009.
 Chris Laws & Frank Schmid, Reserving in the Age of Obesity 4 (Nat’l Council on Compensation Insurance), available at https://www.ncci.com/documents/AgeofObesity-Sept09.pdf.
 Id. at 11.
 Id.at 3.
 217 P.3d 644 (Ore. 2009).
 Id. at 644-46.
 Id. at 644-47.
 Id. at 650-51.
 Id. at 651-52.
 910 N.E.2d 809, 810-11 (Ind. Ct App 2009).
 Id. at 811, 817.
 Id. at 812.
 Id. at 813, 816.
 Id. at 812-13, 817.
 Id. at 812.
 Id. at 817.
 Jeremy Smerd, Ruling Could Spur Hiring Bias Against Obese Workers, Workforce Management, Oct. 19, 2009 available at http://www.workforce.com/section/00/article/26/74/26.php.
 Wis. Stat. § 102.41.
 226 Wis. 2d 11, 593 N.W.2d 908 (Ct App 1999).
 LIRC, Claim No. 95027768,
 Id. (Anderson, P., dissenting).
 Semons Dept Store v. DILHR, 50 Wis 2d 518, 527-28, 184 N.W.2d 871 (1971).
 Bruns Volkswagen Inc. v. DILHR, 110 Wis.2d 319, 322, 328 N.W.2d 886 (1982).
 LIRC, Claim No. 2000-030212.
 LIRC, Claim Nos. 2003-0300083, 2005-010300.
 Wis. Stat. § 102.42(6).
 Braun v. Industrial Comm’n, 36 Wis. 2d 48, 153 N.W.2d 81 (1967).
 LIRC, Claim No. 1998-019745.
 Id. (citing 1 Larson, Worker’s Compensation Law § 10.10 (2002)).
 LIRC, Claim Nos. 1988-044557 & 2005-008078.