On the hook for bariatric surgery

September 11, 2009
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An Indiana Court of Appeals ruling last month favoring an obese employee is likely to make employers think twice about hiring overweight people.

That’s the take of Brandon Shelton, an attorney at the Indianapolis office of employment law firm Ogletree Deakins.

The appeals court backed a lower court and the workers compensation board in affirming that a pizza joint in northwestern Indiana not only must pay for back surgery for a 340-pound worker hurt on the job, but also for bariatric surgery to improve odds of the back surgery succeeding.

A January amendment to the Americans with Disabilities Act boosts the likelihood that employers are prohibited from discriminating against overweight people in the hiring process, although no regulatory interpretations or court cases have explicitly stated this.

Now that precedent is set for Indiana employers’ being on the hook not only for an injury, but also for a preexisting condition (obesity), more employers will quietly reject obese applicants, Shelton predicts.

“Whether that’s unlawful is an entirely different question,” he says, making clear that it indeed would be unlawful.

How the workers compensation board and lower courts will apply yesterday’s ruling is an interesting question. Is obesity now considered a preexisting condition? If so, are employers are on the hook to pay for obesity in an unrelated work injury?

The pizza shop case is a classic case of bad facts leading to bad law, Shelton believes. Obesity didn’t cause the injury; yet, obesity now could be considered a preexisting condition.

Shelton, by the way, notes that the appeals court followed Indiana precedent in its ruling, so the court wasn’t out of bounds. What are your thoughts?

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  • This is absolutely sickening! I cannot believe that the court ruled in favor of the employer having to pay for the cost of this employeeâ??s weight loss surgery. Our country continues to reinforce bad behavior and takes any responsibility off of those with bad habits. Meanwhile the rest of us are footing the bill, with regard to the expense in healthcare, employerâ??s loss in illness and then these ridiculous claims. When are people going to start taking responsibility for their own actions? If you ate cheeseburgers and fries and live a stagnate lifestyle then you should pay for your own health problems which you caused on your own. Smokers pay an increased rate because they choose to smoke incurring additional medical problems, then why aren't those who decide to live a precarious lifestyle by eating complete garbage and not being active held to that same standard. It's insane what is going on with regards to obesity in this country. I'm sick of seeing fat and unhealthy people!
    • What's the point of having a place to put in a comment title if it doesn't appear anywhere on the post?
    • Great post, Norm

      I've always been a big guy with how should we say, "weight fluctuations," but the significance here is that this codifies or at least acknowledges what is already probably already happening. Heavy people already know they face discrimination just based on human nature.

      Let's face it, there are more important reasons than this example for heavy people to slim down and maintain a healthy weight.

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