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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    1. As I understand it, the idea is to offer police to live in high risk areas in exchange for a housing benefit/subsidy of some kind. This fact means there is a choice for the officer(s) to take the offer and receive the benefit. In terms of mandating living in a community, it is entirely reasonable for employers to mandate public safety officials live in their community. Again, the public safety official has a choice, to live in the area or to take another job.

    2. The free market will seek its own level. If Employers cannot hire a retain good employees in Marion Co they will leave and set up shop in adjacent county. Marion Co already suffers from businesses leaving I would think this would encourage more of the same.

    3. We gotta stop this Senior crime. Perhaps long jail terms for these old boozers is in order. There are times these days (more rather than less) when this state makes me sick.

    4. One option is to redistribute the payroll tax already collected by the State. A greater share could be allocated to the county of the workplace location as opposed to the county of residency. Not a new tax, just re-allocate what is currently collected.

    5. Have to agree with Mal Burgess. The biggest problem is massive family breakdown in these neighborhoods. While there are a lot of similiarities, there is a MASSIVE difference between 46218 and 46219. 46219 is diluted by some stable areas, and that's probably where the officers live. Incentivizing is fine, but don't criticize officers for choosing not to live in these neighbor hoods. They have to have a break from what is arguably one of the highest stress job in the land. And you'll have to give me hard evidence that putting officers there is going to make a significant difference. Solid family units, responsible fathers, siblings with the same fathers, engaged parents, commitment to education, respect for the rule of law and the importance of work/a job. If the families and the schools (and society) will support these, THEN we can make a difference.

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