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Friday, September 11, 2009

Ind. Decisions - More on "Lap-Band Surgery to be Covered By Pizza Shop"

In this entry on Sept. 1st, the ILB reported that the August 6th COA decision in PS2, LLC, D/B/A Boston's Gourmet Pizza v. Adam Childers (ILB summary here) "is the subject of this story today on the WSL Channel ("the Weight Loss Surgery Channel")."

A number of papers yesterday and today are carryng an AP story by Charles Wilson about the August 6th opinion. The story begins:

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 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.

Unfortunately there is no further mention in the story (as it appears in the Indianapolis Star) of the "recent Oregon court ruling."

However, Yahoo News has this longer version that includes:

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.

Posted by Marcia Oddi on September 11, 2009 09:00 AM
Posted to Ind. App.Ct. Decisions