The pre-existing obesity and smoking habits of an Indiana pizzeria employee injured at work didn’t prevent the worker’s ability to receive temporary total disability benefits when the employer failed to produce evidence showing the weight problem or other issues impaired his health or required medical intervention prior to the workplace injury. This was supported by a 2009 ruling by the Indiana Court of Appeals that highlighted a common tactic by employers and workers’ compensation insurers following a workplace accident resulting in injury or illness. It involves turning it all around on the worker, making it seem as if his or her own “poor choices” or habits were in fact the catalyst for the worker’s health problems. It’s an approach designed to eliminate or minimize the insurer’s liability for the worker’s injury – even when there is no question a work accident happened and resulted in injuries.
Injuries are common among restaurant cooks, according to the U.S. Bureau of Labor Statistics. There are approximately 26,500 restaurant cooks in Indiana, with injuries regularly reported, including:
- Slips, trips, and falls;
- Exposure to chemicals;
- Assault (due to basic lack of security);
- Ergonomic hazards.
But that list isn’t exhaustive. In this Indiana workers’ compensation case, the claimant was employed as a cook at the defendant restaurant when he was accidentally struck in the back by a freezer door. As a result of this incident, he suffered a lower back injury. The injury was immediately reported, and the cook was sent for medical treatment. At the time of this incident, the 25-year-old plaintiff was six feet tall, weighed about 340 pounds, and smoked roughly 30 cigarettes daily.
His treatment for the back injury included both medication and physical therapy. However, the physical therapy had to be stopped because the claimant’s pain continued to worsen. A physician for the worker recommended that if he was to continue treatments for his back injury, he should lose weight, via a lap band surgery, which the doctor opined would substantially help improve his back pain symptoms and possibly help him avoid back surgery.
The employer argued it should not have to pay for weight reduction treatment, arguing that the pre-existing condition of excessive weight and inability to lose weight – combined with a workplace injury – didn’t produce a “single injury.”
The Workers’ Compensation Board of Indiana disagreed, finding the injured line cook should receive this secondary medical treatment relating to his first injury, and further continuing his payment of temporary total disability benefits.
When the pizza shop employer appealed, it argued that I.C. 22-3-3-12, the Indiana Apportionment Statute, acts to separate workplace injuries from pre-existing disabilities or impairments that might or might not be related. The employer argued the law shows it would be counter to state public policy to make an employer responsible for a medical condition that resulted from another cause or employment. It also cited several decisions from other state appellate and supreme courts on similar issues, including from Florida, California, Ohio, Oregon, and South Dakota.
However, the appeals court disagreed. It ruled the employer must bear the cost of the weight reduction surgery because despite the worker’s pre-existing conditions, it was not able to produce evidence to show that prior to the date of his injury, he had a weight problem that impaired his health or required medical intervention. In other words, these pre-existing conditions were not a problem until the work injury, leading to a conclusion that but for the work injury, they may not have ever been an issue (or at least not an immediate one requiring aggressive intervention).
The Workers’ Compensation Board’s decision was affirmed. Our experienced Highland work injury attorneys are committed to fighting for favorable results in our clients’ workers’ compensation claims.
Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Call Toll Free 877-446-5294.
PS2 LLC v. Childers, Aug. 6, 2009, Indiana Court of Appeals
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What to Do Immediately After an Indiana Car Accident, Feb. 2, 2018, Gary Motorcycle Accident Attorney Blog