Report: Obesity Moniker to Impact California Workers’ Comp

By Don Jergler | August 8, 2013
Obesity Workplace Overweight

The recognition of obesity as a disease may have a significant impact on workers’ compensation claims in California, a group said in a report on Thursday.

The group issued the report following a decision in June by the American Medical Association House of Delegates reclassifying obesity as “a disease state.”

In the past obesity in workers’ comp went largely unreported because it was not considered a condition that needed to be addressed to treat most work related injuries or illnesses, according to the report from the California Workers’ Compensation Institute.

But with obesity reclassified as a disease medical providers may feel a greater responsibility to counsel obese patients about their weight, or if treatment for a compensable injury causes significant weight gain, CWCI stated in its report.

The changes even threaten to undo some of the gains the system is expected to experience from the passage last year of a sweeping workers’ comp reform law, Senate Bill 863, which changes the way problems such as sleep disorders and sexual dysfunction are treated by the state’s workers’ comp system, the report’s authors state.

“The result could be an increasing number of claims that include obesity as a comorbidity, as well as an increase in cases in which obesity is claimed as a compensable consequence of injury in the same way that sleep disorders, sexual dysfunction and psychological disorders became commonplace prior to the passage of SB 863,” the report states.

Just how much this will impact the state’s workers’ comp system is pretty much guess work this early on after the change in obesity’s designation, said Alex Swedlow, president of CWCI.

“Workers’ compensation is a very complicated subcomponent of a much larger healthcare delivery system and when things happen that affect the broader healthcare delivery system it often ripples through workers’ compensation,” Swedlow said.

In announcing the change in designation AMA also noted obesity afflicts as much as one-third of the nation’s population.

“If almost 30 percent of California is clinically obese … that puts a large population into play,” Swedlow said.

With such a broad classification AMA is “essentially medicalizing almost a third of our population,” Swedlow added. “It’s a very real possibility that the change will have a significant influence on workers’ comp.”

Employers’ attorney Don Barthel, a partner with Bradford and Barthel LLP, believes the designation essentially makes obesity an occupational disease, and it opens up a broader playing field for claimants’ attorneys.

“I’m suddenly diseased,” Barthel quipped, noting his job is often sedentary in nature. “It’s an occupational disease caused by 17 years at law firm sitting at a desk.”

“The question is,” he added, “Will this allow doctors and judges to feel more comfortable providing apportionment to obesity now that it is classified as a disease? It may make it more politically more palatable to provide apportionment to a disease.”

Obesity is already a contributing factor in some workers’ comp matters, such as carpal tunnel cases, as well as in back and knee injuries, Barthel said.

“We see the see stomach stapling and gastric bypass awards in back cases,” he said.

People who have been injured with, for example, “blown discs,” or a severe knee problem, but who weigh too much, often successfully seek awards for radical weight reduction surgeries to ensure proper recovery, Barthel said.

Beyond that, the new designation has the potential to make obesity a primary factor in issuing workers’ comp awards.

“Now you no longer have to claim you have a bum knee or claim you have a bad back to get an award, you just have to say ‘I’m fat,’” Barthel said. “Now you have an occupational disease. It’s called obesity.”

According to the CWCI report, aside from its status as a comorbidity, obesity could become a primary workers’ comp diagnosis, particularly in sedentary jobs like office work, or long-haul trucking, according to the report.

“In such scenarios the viability of the claim would likely hinge on proving that the work actually caused the obesity, which would be an issue ripe for dispute and which could lead to additional litigation,” the report states. “In light of the increasing evidence of genetic pre-disposition for various medical conditions, defining causation and relative causation will be critical in claims involving obesity, and also may arise in other employment areas such as pre-employment screening.”

The “disease” designation doesn’t bode well for employers or for long-term workers’ comp rates employers may be faced with paying if claims do rise, said Jerry Azevedo, a spokesman for the Workers’ Compensation Action Network, a group that represents the interests of employers.

“The implications are grim, especially if statutory or case law proves ineffective in limiting employers’ liability to true industrial causation or direct compensable consequences,” Azavedo said. “Unfortunately, there’s a tension created through litigation in the workers’ comp system, where plaintiffs’ lawyers want to make everything under the sun a part of the injury claim to run up the bills and inflate benefits. Employers are forced to defend against that and have fought hard for policies that reinforce what should really just be common sense – which is employers should pay for what was directly caused by the work injury. “

State Compensation Fund, California’s largest workers’ comp employer, is already keeping an eye on the impact this will have on the insurer, said Michelle Weatherson, director of State Fund’s claims medical division.

“Comorbidities such as obesity have been a factor that impact treatment outcomes for injured workers for some time and are addressed on a case-by-case basis where appropriate,” Weatherson said. “It is not clear that the information in this report will substantively change our approach, but we are evaluating what this information means to our claims handling going forward.”

According to CWCI’s Swedlow, currently less than 1 percent of claims have obesity as a comorbidity, because most injuries aren’t influenced by an injured worker being clinically obese.

In the case of a minor ankle sprain without lost time, for example, the fact a worker happens to be obese would not likely interfere with recovery, Swedlow said, adding, “now we’ve raised the profile of obesity.”

While the ratio of claims associated with obesity are low, those cases are often more complicated and more costly, according to the report, which shows workers’ comp cases including obesity are nearly 4-times more likely to be a lost-time claim, 4.5-times more likely to result in a permanent disability and are 4.5-times more likely to include attorney involvement.

Additionally, more than eight-in-10 claims involving obesity as a comorbidity have higher average benefit payments than those without obestiy, the report shows.

While AMA’s designation has no legal standing, the organization’s positions often influence state and national lawmakers and regulators, the CWCI report noted.

And that designation, according to the report, will likely affect diverse areas: employment, including the Americans with Disability Act and Equal Employment Opportunity Commission; life, disability, and workers’ compensation insurance; weight bias; insurer and provider responsibility; physician reimbursement; and diagnostic and procedure coding.

“The operational and economic consequences could be significant for medical providers and health care delivery systems that now have to reconcile implementation of the new disease category, an evolving standard of care for obese patients, managed care issues concerning medical efficacy and cost/benefit considerations, as well as coordination of care challenges between workers’ compensation, group health and federal programs and requirements such as Medicare Section 111 reporting,” the report states.

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Latest Comments

  • August 19, 2013 at 10:56 am
    Fat-n-Old says:
    So now employers will have a "legitimate" reason not to hire a person that does not meet this society's image of "fit." 'Well, uh..., harrumph, harrumph... we only hire thin p... read more
  • August 19, 2013 at 9:52 am
    sl says:
    Low quality food (the kind that low and middle income people can afford)that all promote overweight and obesity, massive $ on advertising, and don't even get me started on pub... read more
  • August 16, 2013 at 3:10 pm
    Libby says:
    Being thin does not equate to being healthy. I know some very thin people who are the sickliest folks I've known. And others that exercise like crazy and end up on the opera... read more
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