Under the New York State workers’ compensation law, an employer or carrier “shall promptly provide for an injured employee such medical, surgical, optometric or other attendance of treatment . . . for such period as the nature of the injury or the process of recovery may require.” This is a pretty general requirement, but it opens the door to a new question: what happens when an injured worker requires back surgery, but is not a candidate because he or she is overweight? They have two options:
- Make a formal request for the surgery arguing that the procedure is causally related
- Move to have the case amended to include consequential obesity
The board panel has indicated that if a claimant can show that there was significant weight gain as a result of his or her accident, then a claim can be amended to include consequential obesity. In defending these claims, not only are the initial medical reports vital, but it is important to have the claimant sent to an Independent Medical Examination (IME) so the claimant’s weight can be documented. In most accident cases, the claimant initially gets treated in an emergency room (ER), but later goes to a “comp doctor” for an opinion on causal relationship and degree of disability. However, the initial ER records are helpful in obesity cases because they are the first time in a case where the claimant’s height, weight, and body mass index (BMI) are documented. In The Carlye LLC (2016), the board panel noted that a claimant examined by an IME consultant less than two months after an accident who was reported to be five feet four inches tall and weighed 240 pounds supported the conclusion that morbid obesity pre-dated the accident.
When you receive a formal request for weight loss surgery or the claimant produces medical evidence that he or she has consequential obesity, your initial reaction should be to investigate and, if you have not already done so, send the claimant to an IME. The claimant’s medical reports should be reviewed to find the starting height and weight so a BMI can be determined. From there, subsequent medical reports and IME reports should be reviewed to see if there has been a weight increase and, if so, by how much. If there has not been a significant increase, then you can deny the procedure because the provider has not met the burden of medical necessity. As an alternative, you can always have the claimant peer review performed to see if he or she is actually a candidate for weight loss surgery or to review the claimant’s BMI history for an opinion on whether the weight gain appears to be related to the accident. In The Carlye, LLC, the board panel concluded that even though the first weight report was two months removed from the accident, it is unreasonable that a person would go from an average weight to morbidly obese in such a short span of time.
In most workers’ compensation cases, we do not know the condition of the claimant’s controverted or accepted sites of injury prior to the accident and prior to them being raised. However, in almost every case, we are handed the claimant’s initial height and weight on a silver platter. Your defense to consequential obesity claims and requests for bariatric bypass surgery is given to you by the claimant’s own doctor in the first report showing a work-related injury.