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May 25, 2010
Gastric Bypass Covered by Workers’ Comp

Gastric bypass surgery for a morbidly obese employee was covered by workers’ compensation when the employee’s weight gain was caused by compensable injuries and surgery was required to recover.

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What happened. The employee, “James,” slipped and fell at work in 2002. His ensuing workers’ compensation case claimed injuries to his head, neck, back, and knees. He claimed that his morbid obesity resulted from his inability to move and exercise as he had been able to do before his on-the-job injury. As a result, James claimed that he developed knee and back problems and, in an effort to combat those problems and counter a broader threat to his survival, he sought authorization to undergo gastric bypass surgery.

A workers’ compensation law judge granted his request. Upon review, the Workers’ Compensation Board affirmed, holding that the surgery was causally related to the compensable injuries.

What the court said. In affirming the decision, the Appellate Division of the Supreme Court of New York held: “The employer is obliged to pay for claimant’s medical care for such period as the nature of the injury or the process of recovery may require” (Workers’ Compensation Law Sec. 13[a]; Spyhalsky v. Cross Construction (2002)).

“There is evidence in the record that claimant has gained a substantial amount of weight since 2002 due to the sedentary lifestyle imposed by the compensable injuries,” the court continued. “Claimant’s (James’s) treating orthopedic surgeon opined that claimant’s back and knee pain was exacerbated by his obesity and that such could be alleviated by weight loss. While material in the record before us could support a different result, substantial evidence exists for the Board’s determination that claimant’s weight gain was caused by his compensable injuries and that gastric bypass surgery ‘would assist in [his] recovery.’”(Workers’ Compensation Law Sec.13[a]; Bolds v. Precision Health, Inc. (2005)). Laezzo v. New York State Thruway Authority, Supreme Court, Appellate Division, Third Department, 2010 NY Slip Op 1860 (2010).

Point to remember: In this case, there was substantial evidence that the employee’s obesity occurred after his injuries. However, employers are left to wonder what happens when an obese employee sustains compensable injuries. The state’s expansive position in granting employees’ claims for workers’ compensation may give employers pause.

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