November 11, 2009

I. Background

On August 6, 2009, the Indiana Court of Appeals issued a decision that has generated considerable interest in the business community. The Court upheld an Indiana Worker's Compensation Board (Board) award in favor of a Claimant who had alleged a work-related back injury. At issue in the case was whether the Claimant was entitled to receive "secondary medical treatment" (possibly including surgery), for weight reduction in order to permit back surgery to occur, which had been ordered by the Board as a result of the Claimant's work-related accident.

The facts reported in the decision indicate that the Claimant had been employed as a cook at the time he was accidentally struck in the back by a freezer door, sustaining injury. He immediately reported the accident to his employer and was sent for medical care. According to the record facts reported by the Court, the Claimant was about six feet tall and weighed approximately 340 pounds. It was also reported that the Claimant smoked about 30 cigarettes a day. The parties stipulated to certain exhibits which detailed the Claimant's medical treatments following the accident.

An MRI of the Claimant's spine showed disc degeneration and central disc herniation. The treating physician noted the Claimant's pain at a high level primarily in his lower back and hip, but also radiating down the Claimant's left leg. Throughout the weeks and months following the initial treatment, the Claimant's back pain was reported to increase, along with numbness.

Epidural medical treatment was observed to make the Claimant's pain worse, and physical therapy was ordered. At some point, physical therapy was discontinued due to worsening back pain. The treating physician noted further escalation of the Claimant's back pain, which had also affected his neck. At some point during this treatment program, the Claimant indicated that he wished to proceed with back fusion surgery, despite the risk of such surgery.

An independent medical examination resulted in an opinion that neurosurgical intervention was not recommended due to the Claimant's weight and age. The independent medical examiner advised the Claimant to lose weight and also advised that neurosurgery would not guarantee a cure. Spinal decompression treatments were recommended. Those treatments were unsuccessful in dealing with the Claimant's pain, which returned after each decompression treatment. The treating physician noted that the Claimant's weight had risen to 380 pounds and indicated that the back problems might require back fusion. However, the treating physician believed that such surgery was doomed to failure unless the Claimant was able to lose weight. The treating physician advised that the Claimant consult a physician about lap-band or gastric bypass treatment in an effort to try to get the Claimant's weight to a lower level.

II. The Hearing on the Claimant's Application for Benefits

During the hearing on Claimant's application for benefits, the hearing examiner heard evidence from the treating physician that because of the Claimant's current weight, spinal fusion surgery presented a high risk for failure. The treating physician further noted that the Claimant had been unable to lose weight on his own. Accordingly, the physician suggested lap-band surgery so that the Claimant would be able to lose substantial weight and improve his back symptoms, and possibly to avoid surgery.

Other evidence included medical reports from a pain specialist physician. That physician reported that the Claimant's pain was an 8 on a scale of 10 and that physical activity aggravated his pain. The reports also showed that Claimant's weight was then 386 pounds.

The hearing member issued an award in favor of the Claimant and required the employer to bear the cost of the Claimant's weight reduction surgery because the hearing member found that the Claimant's "pre-existing medical/health condition combines with the accident at work to create a single injury for which [the Claimant] is entitled to treatment." Temporary total disability benefits were also awarded for the period of time that the Claimant was preparing for, undergoing and recovering from weight loss surgery and while the Claimant was preparing for, undergoing and recovering from lower back surgery.

III. The Employer's Appeal

The employer appealed the award of the single hearing member to the full Board and it affirmed the hearing member's decision. The employer then appealed to the Indiana Court of Appeals. The Court's review of a decision of the Board is undertaken within certain limits. The Court does not reweigh the evidence and it does not judge the credibility of witnesses. The Court's review is to determine whether "substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusions." It is against this limited scope of review that the Court assessed the Board's award of the weight reduction treatment and related award of benefits.

The employer argued that the Board incorrectly determined the Claimant sustained a "single" injury. Upon review of Indiana and other states' case law, the Court disagreed, holding that there was evidence sufficient to uphold the Board's determination of a "single" injury. Among other things, the Court noted that the record did not establish that, prior to the injury, the Claimant had a weight problem that impaired his health and/or required medical intervention. The Court also noted that, subsequent to the injury, the Claimant's lower back pain rendered him nearly immobile, his pain and immobility continued, and his weight increased. The Court observed that there was no evidence that, at the time of the injury, the Claimant's weight precluded successful resolution of his pain. Moreover, the Court noted the evidence indicated that, after the Claimant's weight gain, further pain treatment was doomed to failure. Accordingly, the Court concluded that the evidence supported the Board's conclusion that the injury was related to the Claimant's employment and resulted in a weight gain making it necessary to provide medical treatment to reduce his weight, as part of the treatment for his work-related lower back injury.

IV. Conclusions

There are a mounting number of claims asserting soft tissue injuries, back injuries and cumulative trauma injuries. In cases where a claimant's weight poses a challenge to successful treatment of any work-related injury, the result in this case confirms that worker's compensation benefits can be awarded for weight reduction treatment and/or surgery, as part of the process of treating a work-related injury, as long as certain evidence (such as that referenced in this case) supports the award of such benefits. Thus, medical benefits and temporary total disability benefits can be awarded to cover the treatment and recovery from the weight reduction surgery (or other weight reduction treatment), unless it can be shown that the underlying weight condition impaired the claimant's health and/or required medical intervention before the injury occurred. It will also be important to determine whether there is any evidence, at the time of the injury, that the claimant's weight precluded successful resolution of work-related injury. Making these kinds of determinations will require expert opinion and may well present the Board and the Courts with a new round of the "battle of experts" on these issues.