In Blog, Healthcare, Obesity, Workers’ Compensation

bernard d nomberg

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

Alabama is home to award-winning chefs, outstanding restaurants and most importantly, BBQ restaurants and joints that’ll make you wanna slap yo’ mama (but do not slap yo’ mama because she will not buy you BBQ).  Point is, all that delicious food can lead to added pounds and if you are not careful, obesity.  What does it all mean?

According to statistics, Alabama has the fifth highest obesity rate in the United States. Alabama’s current obesity rate is 33.5%, more than ten percent higher than the rate of 22.6% in 2000.[1] Obesity was classified as a disease in 2013 in the Diagnostic and Statistical Manual of Mental Disorders. While the manual is mainly used in the healthcare industry, the implications overflow into other industries.

Recently, questions have begun as to whether or not obese individuals are a protected class. In a recent case, an employer fired a morbidly obese individual, regarding him as disabled, and replaced him with a slimmer employee. Right now, obesity is not considered a protected class, but discrimination against obese individuals in the workplace is not tolerated.

The implications of obesity have also found their way into workers’ compensation. According to the September Journal of Occupational and Environmental Medicine[2], the higher an employee’s body mass index, the higher the workers’ compensation payout. The Journal conducted a study of 2,300 workers and compared obese, overweight, and normal workers in relation to workers’ compensation costs. The average cost for a normal-weight worker was $180,000, but overweight and obese workers averaged $270,000 and $470,000 respectively. It has previously been determined that obesity leads to a higher likelihood of workplace injury and longer time off work, but this is the first time the cost effects have been clear.

obese-person

Obesity also has sprung a debate specifically in regards co-morbidity. Co-morbidity is where two chronic diseases or conditions are present at the same time. Obesity has typically gone unreported as a co-morbidity, however with the new diagnosis of obesity as a disease, individuals claiming obesity as co-morbidity is likely to increase. There is also likely to be an increase in cases where obesity is claimed to be a compensable consequence of injury.

One case study examined individuals affected by a workplace accident from 2005-2010. The study revealed that claims with obesity as a co-morbidity have had higher rates of lost-time from work, permanent disability, and attorney involvement and are more likely to involve additional co-morbidities. Furthermore, benefit payments for those who listed obesity as a co-morbidity were 81.4% higher than those who did not list it. The claims averaged 35 weeks of lost time, 80% more than the 19 weeks for claims without the obesity co-morbidity.[3]

What does this mean for obese individuals injured on the job? Will we see work comp claims for overweight and obese employees? Can injured workers now claim obesity as a co-morbidity? This in addition to claiming obesity as a compensable consequence of injury.  Remember to have a successful workers’ compensation claim in Alabama, the injured worker must still prove legal and medical causation.

The rates dramatically increase for benefits and time off of work where obesity is claimed as a co-morbidity or a compensable consequence of injury. In addition, companies have started to develop programs addressing obesity and offering services in the workplace such as gyms, incentive programs, etc. Those individuals that suffer from obesity can benefit from the programs provided by their employer, usually with no out of pocket expense.   Stay tuned.

If you have questions about your workers’ compensation claim, please call us to discuss your situation.

[1] https://stateofobesity.org/states/al/

[2] https://www.acoem.org/obwcomp.aspx

[3] California Workers’ Compensation Institute, Obesity as a Medical Disease: Potential Implications for Workers’ Compensation, https://www.cwci.org/research.html (August 2013)

Bernard D. Nomberg has practiced workers’ compensation law in Alabama for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating.  He has been selected a Super Lawyer by Super Lawyers Magazine as well as a Top Rated Attorney by B-Metro Magazine. 

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