When is nonwork-related treatment work-related?

The Associated Press recently reported on an Indiana workers’ compensation case, Boston’s Gourmet Pizza v. Childers,  where an employer was ordered to pay for lap band surgery for an overweight employee who injured his back in an work-related incident and was required to undergo the weight loss surgery before the surgery to correct his back injury could be performed.

In March 2007, Childers, who was then 25 and weighed 340 pounds, was struck in the back by a freezer door at Boston’s The Gourmet Pizza. His physicians recommended surgery to ease his pain, but warned the operation would be unsuccessful unless he underwent surgical weight reduction.

Boston’s agreed to pay for the back surgery, but denied its liability for payment of the weight-loss surgery which ranged in cost from, $20,000 to $25,000, relying on the argument that Childers was obese before he was hurt.

The Indiana Court of Appeals found the surgery compensable because Childers’ weight and the accident had combined to create a “single injury.”  They further noted that Boston’s presented no evidence that Childers’ weight had been a problem before the accident.

The Kentucky Workers’ Compensation Board has adopted a similar theory of compensability.  While not using the Indiana court’s “single injury” language the reasoning and result are essentially the same. Blue Chips Installation, Inc. v. Denniston, Kentucky Workers Compensation Claim No. 02-97692 (2005), involved the compensability of a dental procedure, which treating physicians required the claimant to undergo before performing surgery to treat his work injury.

The Board looked to foreign jurisdictions to formulate their decision.  The lengthy and well researched discussion was as follows:

[W]e do not read the court’s holding in Allstate Insurance Co. v. The Industrial Commission of Arizona, 126 Ariz. 425, 616 P.2d 100 (App. 1980), as limited to emergency situations. Blue Chips apparently interprets the Arizona court’s ruling as limited to instances in which treatment of a nonwork-related condition is necessary in order to address a work-related injury of an urgent nature. From our own review of Allstate, supra, however, it does not appear that the court’s holding or rationale was in any way based upon or limited to emergency work injuries. In fact, the court’s summary of the case indicates that the claimant had been admitted to the hospital for a diagnostic myelogram and possible laminectomy. A routine urinalysis and EKG performed pursuant to the hospital admission revealed an abnormally high protein level and an atrial fibrillation. Perhaps Blue Chips intends to suggest that the nonwork-related condition must be of an emergency nature and necessary to the treatment of a work-related condition (of an emergency nature or not) in order to be found compensable. Again, however, we do not so read the Allstate opinion, which specifically holds as follows:

It is generally accepted that where an industrial injury results in surgery which aggravates a preexisting condition or causes further complications, the entire result is an industrial responsibility.

* * * *

The question then is whether this reasoning should apply to pre-surgery treatment necessary to place the injured employee in a condition to undergo surgery related to an industrial injury. In reviewing the evidence, which we view in a light most favorable to sustaining the award . . . we find that the reasonable inferences from the evidence support the hearing officer’s conclusion that the medical intervention occasioned at the time for the atrial fibrillation and the renal shutdown were related to the procedures undertaken in preparation for the industrially related myelogram and lumbar surgery, and these preexisting conditions would not have required treatment but for the impending surgery.

Id. at 102. Further support for our interpretation of Allstate, supra, is found in a subsequent decision by the same court, Arrowhead Press, Inc. v. Indus. Comm. of Ariz., 134 Ariz. 21, 653 P.2d 371 (App. 1982).

We believe the circumstances of the case sub judice to be most similar to those before the Arizona court in Arrowhead, supra, where the court summarized the pertinent facts and its rationale as follows:

The evidence presented at the hearing revealed that one of claimant’s physicians, Robert Briggs, M.D., was of the opinion that it was necessary for claimant to be treated for the bronchitis so that she could undergo the anesthesia required for the knee procedures. . . . There was also evidence that claimant would not have been hospitalized if she had suffered only from the bronchitis. Thus, we hold that there was sufficient evidence to support the administrative law judge’s finding that the hospital treatment of the bronchitis was reasonably necessary and was incurred to place claimant in a condition to undergo surgery for her industrial injury. . . . Here, unlike in [Ross v. Industrial Commission, 112 Ariz. 253, 540 P.2d 1234 (1975), overruled on other grounds], the bronchitis treatment was necessary so that the industrial condition could be treated. In Ross, the treatment of the non-industrially injured eye was not undertaken as a precondition to the treatment of the industrially injured eye and thus was not the responsibility of the carrier.

Id. at 373.

The Arizona Court of Appeals later declined to extend its holding in Arrowhead, supra, to a situation involving a nonwork-related condition that would have required treatment notwithstanding the industrial injury at issue. Beasley v. Indus. Comm. of Arizona, 175 Ariz. 521, 858 P.2d 666 (App. 1993). The court distinguished Beasley, supra, from its earlier holdings on grounds that “[i]n neither case would the unrelated condition have required treatment æbut for’ the existence of the industrial injury.” Id. at 668.

The rationale set forth in Arrowhead, supra, was relied on by a Colorado appeals court in Public Serv. Co. of Colo. v. Indus. Claim App. Office, Colo.App., 979 P.2d 584 (1999), also cited by Denniston herein. In Public Serv. Co., supra, the court held that treatment of the claimant’s nonwork-related bipolar disorder was compensable where the evidence supported the finding that such care was a reasonably necessary prerequisite to surgical treatment of his industrial injury. The Colorado court also found support in Professor Larson’s treatise, concluding as follows:

Furthermore, we conclude that ancillary preoperative treatment is a pertinent rationale for reasonably necessary care of a non-industrial disorder, when such must be given in order to achieve the optimum treatment of the compensable injury.’ 5 Larson’s Workers’ Compensation Law, supra, at § 61.13(e).

Id. at 585.

Having reviewed the statutory plan for provision of medical treatment for work-related injuries in Kentucky, and being informed by the foregoing extraterritorial authority, we conclude that the employer may be held liable for the cost of ancillary treatment of a nonwork-related condition that is reasonably required in order to achieve optimum treatment of the compensable injury. The employer is not liable for treatment of a nonwork-related condition that is totally independent of the compensable injury and for which treatment would have been required notwithstanding the compensable injury.

In short, with regard to ancillary treatment, the inquiry at least in Kentucky (and apparently in Indiana as well) appears to be: (1) Is the nonwork-related treatment required in order to achieve optimum treatment of the compensable injury? and (2) Does the nonwork-related condition require treatment notwithstanding the compensable injury? If the answer to prong 1 is yes and the answer two prong 2 is no, the nonwork-related ancillary treatment will most likely be found compensable.

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By |2009-09-12T16:27:01+00:00September 12th, 2009|