Posts Tagged ‘Indiana’

Dueling Disabilities

Monday, May 17th, 2010

Emily Kysel, 24, is highly allergic to a common item: paprika, a spice made from ground bell and chili peppers. Inhaling the colorful spice can send her into shock and could even kill her. “It’s like someone poured acid down your throat,” she says. So family members raised $10,000 to buy her an allergy-detection dog, a golden retriever named Penny. When sensing the presence of paprika, Penny jumps up on Emily, who then presumably high-tails it out of the area. This might prove socially and professionally awkward, but it apparently works.
The City of Indianapolis’s Department of Code Enforcement hired Emily. Well aware of her unusual condition, they approved her bringing Penny to work and alerted supervisors and co-workers to Emily’s plight. Employees were asked to forego the paprika on hummus, chili, buffalo chicken wings, etc.
So Emily shows up for work, Penny at her side, and a co-worker immediately has an asthmatic reaction: not to Emily, of course, but to the dog. Emily’s boss makes an on-the-spot management decision to void Emily’s accommodation; he tells Emily that she cannot bring Penny to work. Forced into the limbo of neither working nor being unemployed, Emily files suit, alleging discrimination and failure to accommodate.
“I was crestfallen, angry,” Emily said. “I thought I had jumped through all the hoops to get permission, but then it immediately felt they were favoring this other individual.”
Emily points out that the city allows the use of guide dogs for blind individuals – though it appears that no blind folks work in the Department of Code Enforcement.
Christopher Kuczynski, assistant legal counsel for the ADA division of the EEOC, declined to comment on the particulars of this case. But he did say that “what’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other.”
Management Conundrum
So what’s a manager to do? Where is the balance between the dog that is needed and the dog that is the problem? Would it be possible to establish a reliable “Paprika free zone” and thus eliminate the need for Penny? (This seems somewhat feasible, although paprika is often a hidden ingredient, as in hotdogs and sausages.) Could Penny perform a spice “sweep” at the beginning of the workday and then go home? (How would workers feel about a dog sniffing their lunches?) Or could they find a hypo-allergenic, paprika sniffing dog (thereby relegating the loyal Penny to the proverbial dustbin of history)?
So many questions, so few answers: this case of dueling disabilities presents an interesting conundrum. By creating a safe workplace for one employee, another employee is put at risk. We note in passing that any allergic reactions – whether involving Emily or the co-worker – would likely be compensable under workers comp. In this particular situation, however, comp appears to be the least of management’s worries.

More on the work comp-financed weight loss surgery ruling

Friday, September 11th, 2009

Charles Wilson of AP has written an article about the Indiana court ruling which determined that Boston’s The Gourmet Pizza must pay for an employee’s weight loss surgery under workers comp. For the article, Wilson spoke with attorneys representing both sides of the issue, as well as our own Tom Lynch for the workers comp perspective.
The so-called “lifestyle illnesses” of obesity and diabetes pose complicated issues and challenges for employers:

“Both Lynch and Maltby said the issue won’t go away soon, in part because one-third of American adults are considered obese, with a body mass index of 30 or more. The index is based on height and weight. Last year, at least 220,000 obesity surgeries were done in the United States, says the American Society for Metabolic & Bariatric Surgery.
And Lynch said the ruling could have repercussions beyond obesity and weight-loss surgery.
“Who among us does not have some kind of situation that either now or in the future … could contribute to an injury?” he said. “This could be a big deal.”

See our original post: Compensible weight loss surgery? A new wrinkle in obesity.
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The Cost of Getting Better

Thursday, August 20th, 2009

Earlier this week, my colleague Julie Ferguson blogged an intriguing case in Indiana, where Adam Childers, an obese pizza baker, suffered a back injury when he was hit by a swinging freezer door. He was unable to get better due to his obesity. As a result, the Indiana court ordered the employer to pay for weight reduction surgery, to be followed by back surgery, all the while providing temporary total disability benefits to Childers. A relatively large claim becomes a very large claim due to the prospect of sequential surgeries. This case raises some fascinating issues concerning the cost of getting better. Boy, does it ever!
There is no need to repeat the succinct summary of the case provided in Julie’s blog. For those interested in the details, here is the actual opinion of the court.
This case raises two compelling issues: First, the degree to which employers become responsible for non-work related factors in recovery; and second, the looming specter of widespread discrimination against people whose pre-existing conditions make virtually any injury substantially more difficult to manage.
Taking People as They Are
Employers cannot set a high bar for “health and wellness” and then exclude everyone who falls below it. Any health standards must be grounded in business necessity. As we have seen in recent blogs, employers might be in a position to reject applicants who smoke (depending upon the state), but they generally cannot arbitrarily turn away people with co-morbidities that may impact recovery times: diabetes, heart conditions, asthma, etc.
In the Indiana case, at the time of the injury Childers weighed 340 pounds and smoked 30 cigarettes a day. In its opinion, the court did not consider him “disabled” as defined in the ADA: his weight did not “substantially impact” one or more major life activities. Thus, despite his weight, he did not fall into a protected class.
Once injured, however, Childers’s weight became a major obstacle to his recovery. Indeed, any obese person suffering from back, hip, knee, leg or ankle injuries would find recovery extremely difficult, as their spine and limbs are routinely stressed by the sheer weight of the body. Under Indiana law, the pre-existing condition of obesity combines with the work-related injury to produce a single injury. With the pre-existing condition absorbed into the workers comp claim, the employer is responsible for any and all treatments required to bring the worker to maximum medical improvement.
There is a definite logic to the Indiana court’s position. The problem is not in its protection of Childers, but in the implications for all Indiana employers as they are confronted with hiring decisions.
When in Doubt, Leave Them Out?
With the Childers’s decision, employers in Indiana have been put on notice that at least one conspicuous part of the labor pool – obese people – bring the risk of substantially higher costs following injuries in the workplace. As employers make day to day hiring decisions, they may well have the image of higher costs of injuries associated with obesity in the back of their minds. Given two applicants, one obese, one within normal weight ranges, employers may be tempted to ignore other important hiring factors such as motivation and experience and reject the obese applicant.
Thus the unfortunate consequence of providing extensive benefits to Childers is that it may have the proverbial “chilling effect” on the job prospects for others with similar weight problems. The obese already suffer from the daily judgment of a thousand eyes: their weight problems are impossible to hide. Now they may have to overcome the additional burden of fearful Indiana employers, who exclude them from employment in the vague hope of keeping the costs of comp under control.

Compensable weight loss surgery? A new wrinkle in obesity

Tuesday, August 18th, 2009

Yesterday, my colleague blogged about employers that refuse to hire smokers and cited another employer who would like to extend that ban to obese applicants. Health-related matters and their associated costs are challenging for employers and we expect they will continue to be played out in the courts. In fact, yesterday, Roberto Ceniceros blogged about a surprise ruling by the Indiana Court of Appeals about weight loss surgery related to a workers comp claim … or at least the ruling was a surprise to us. In Boston’s Gourmet Pizza v. Adam Childers, the court determined that the employer must pay for weight-reduction surgery for Childers as a precursor to treating the work-related back injury. The employer must provide temporary total disability benefits while the employee prepares for, and recovers from, the weight-loss surgery. The subsequent treatment path for the back injury is unclear, various treatments have been under consideration but the employer’s weight was deemed a barrier to any success.
In 2007, the then 25-year-old Adam Childers sustained a back injury after being struck in the back by a freezer door while serving as a cook for his employer. At the time, he weighed 340 pounds and smoked about a pack and a half of cigarettes a day. Because of his weight, his physician advised against any nuerosurgery, but Childers’ back pain persisted and other treatments did not provide relief. Over the course of this treatment, his weight increased to 380 pounds. His physician suggested lap band or gastric bypass surgery to get his weight down, both to relieve his symptoms and to improve his suitability for potential surgical treatments, such as spinal fusion.
Understandably, the employer balked at footing the bill for weight loss surgery. While the employer assumed responsibility in providing treatment for Childer’s work-related injury, they contested the idea that they should have any responsibility for providing secondary medical treatment for a preexisting condition. However, in Indiana, a preexisting condition is not a bar to benefits, a matter that the courts have taken up in several prior cases. Ceniceros sums up it ups this way: But the court agreed with a Worker’s Compensation Board finding that the worker’s pre-existing medical and health condition combined with the accident to create a single injury for which he is entitled to work comp benefits.
We’ve posted many times about the high-cost of obesity and diabetes in the workplace, and how comorbidities can add to the cost of workers comp injuries. We’ve also blogged about employers’ increasingly aggressive efforts to target so-called lifestyle issues that impact health. Decisions like this might heighten employers’ resolve to control obesity – but in that regard, they may find themselves between a rock and a hard place.