Employer Ordered to Pay for Gastric Bypass Surgery

Following a growing national trend, on January 10, 2010 the Appeals Court upheld the New York Workers’ Compensation Board Order requiring an employer to provide treatment for a ‘lifestyle disease’ allegedly related to the claimant’s employment.

Salvatore Laezzo slipped-and-fell, sustaining compensable knee and low back injury, while working for the New York State Thruway Authority in 2002. Medical treatment was provided by his employer. Laezzo’s doctor testified that “his morbid obesity has contributed to his knee and back problems and was a broader threat to his survival.” The doctor recommended gastric bypass surgery.

The employer challenged that recommendation, arguing that there was no causal link between the surgery and the claimant’s injuries.

New York’s Workers’ Compensation Law requires an employer to pay for claimant’s medical care “for such period as the nature of the injury or the process of recovery may require.” (WCL Sect. 13a). This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that ‘arises out of and in the course of employment’ – and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.

The Workers’ Compensation Board and the Appellate Division both agreed that the gastric bypass surgery should be paid for by the employer. The Appellate Court stated that “there is evidence in the record that the claimant has gained a substantial amount of weight since 2002 due to his sedentary lifestyle imposed by the compensable injuries.” The Court ruled that “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.”

In reaching this decision, the Court considered the claimant’s pre-accident state. In this case, the claimant had massive weight gain after the incident at work. The Appellate Court signaled that if the claimant had been obese before the work-injury, they may not have ordered the bypass surgery to correct the condition. However, whether or not a carrier would be liable to treat obesity in a claimant who is obese before the workplace accident is no settled.

In reaching the conclusion that the claimant should be provided gastric bypass surgery, the Appellate Panel cited another case, Stephen Spyhalsky v. Cross Construction (decided april 29, 2002) in which the WCB ruled that the compensation carrier was “liable for certain medical procedures if deemed necessary to impregnate claimant’s wife.” In Spyhalsky, the claimant sustained nerve damage during surgery to repair a compensable back injury which prevented him from naturally impregnating his wife. In that case, the compensation carrier was ordered to provide artificial insemination services to the claimant’s wife. In Spyhalsky, the Court specifically rejected the argument of the employer that the claimant may not have had the ability to naturally father before the workplace accident. In other words, in Spyhalsky, there was no “look back” to before the incident to identify the claimant’s health status at that time.

Case: Salvatore Laezzo v. New York State Thruway Authority, Decided March 11, 2010 (App. Div). Link.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com