Time & Attendance
By Sheena Harrison
Oct. 19, 2012
A woman’s gastric bypass surgery and subsequent weight loss did not constitute a change in condition that would have allowed her workers compensation claim to be reopened, and her employer shouldn’t have to pay for the procedure, the Iowa Court of Appeals ruled this week.
Melinda McKenzie slipped and fell in 1999 while working for MCI Telecommunications Corp., now doing business as Verizon Business Network Services Inc., court records show. She experienced leg and back pain after the accident, and at least two doctors told her that her pain could be relieved by losing weight. The Iowa Workers’ Compensation Commissioner also ruled that Ms. McKenzie suffered a 25 percent industrial disability.
On the doctors’ advice to lose weight, McKenzie underwent unauthorized gastric bypass surgery in 2006 and eventually lost 241 pounds, records show. However, MCI denied authorization and payment for McKenzie’s procedure.
McKenzie’s surgery left her with a malabsorption condition that required her to take a higher dose of narcotics for her pain, records show. She sought an increase in comp benefits, because her medications left her as an unemployable “odd-lot employee,” as well as reimbursement for her surgery.
The state workers’ comp commission reopened McKenzie’s case in 2008 and found that her 25 percent disability rating was incorrect, and that McKenzie was entitled to permanent total disability benefits. Though the surgery didn’t provide significant benefit for McKenzie, the commission also ordered MCI to pay for McKenzie’s gastric bypass, as well as another procedure to reshape her skin and muscles.
The commission reasoned that the surgery was compensable because “it was anticipated at the time of the initial arbitration hearing that weight loss would significantly improve the claimant’s pain symptoms, and thus her overall disability.”
After a series of appeals, an Iowa district court ruled that McKenzie was not entitled to an increase in benefits, since her surgery and weight loss did not change the condition of her work injury or her earning capacity. It also ruled that MCI was liable for McKenzie’s gastric bypass and related costs as a “beneficial treatment” for McKenzie’s work injury. Both parties appealed that ruling in the Court of Appeals.
In a split decision Oct. 17, the Iowa appellate court said previous workers’ comp rulings can only be reopened if the claimant’s injury has worsened or if her earning capacity has been reduced since the original accident. The court said that McKenzie’s original disability rating should not have been reevaluated by the workers’ comp commission in 2008 because it did not meet either of those criteria.
“In this case, neither party contends a previous temporary disability changed into a permanent injury or that a scheduled member injury later caused an industrial disability,” the ruling reads. “It is also clear, based on the record before the commissioner, that McKenzie’s physical condition related to her work injury had not worsened nor had her earning capacity changed since the initial arbitration decision,” the ruling said.
The appellate court also said that MCI/Verizon should not pay for McKenzie’s gastric bypass surgery. While doctors recommended that she lose weight to ease her back pain, the court ruled that McKenzie’s obesity was not caused by her work injury and that she failed to prove the surgery aided her condition.
“While losing 241 pounds is undeniably beneficial to McKenzie’s overall health, McKenzie offered no evidence beside her own testimony that the surgery was beneficial to the work-related injury,” the ruling reads. “At the same time she claimed this same beneficial surgery justified a new finding increasing her previous industrial disability award from 25 percent to an award of permanent total disability.”
In a partial dissent, Judge David Danilson said McKenzie proved that her case should have been reopened for review.
“Facts in the review reopening not existing in the original proceeding were the substantial weight loss by McKenzie, the discovery that her weight was not a significant contributing factor to her pain, the effects of long-term use of narcotic pain medication on McKenzie’s cognitive function, and her inability to maintain any employment a decade after her injury,” he said in the dissenting opinion.
The case was remanded to the state workers’ comp commission for further review.
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