Sometimes It's A Draw

There is an old workers' compensation maxim as it relates to the employer - employee relationship: The employer takes the employee as he/she is.

An extreme case in Louisiana recently demonstrated this maxim when a 600 pound warehouse clerk sustained an injury and failed a weight loss program that was prescribed by his treating physician, but the employer was denied any reduction in benefits because the employee's failure was not an intentional disregard for the treatment program.

The Louisiana Court of Appeals upheld a workers' compensation judge's finding that William Jones had been cooperative and compliant with the weight-loss rehabilitation offered to him after his 2010 back injury, so his employer could not cut his benefits pursuant to Louisiana Revised Statute 23:1226(B)(3).

In Amerisure Insurance Co. v. Jones, No. 2012 CA 1267, Jones injured his back in December 2010 while lifting some pallets. His doctor prescribed medication and physical therapy, but neither course of treatment alleviated his back pain.

The doctor then issued him a prescription to join Weight Watchers.

The facts of the case indicate that Jones followed the Weight Watchers program – regularly attending meetings, eating foods with less than the allotted number of "points" he was supposed to consume each day, and even taking his iPhone to the grocery store to scan items with a Weight Watchers app to make sure they were appropriate for his diet.

Still, after eight months, Jones remained the same weight as before.

Amerisure then filed a motion seeking to have his indemnity benefits reduced, retroactive to the date his doctor told him to sign up for Weight Watchers, contending that Jones had failed to comply with the rehabilitation prescribed. In the alternative, Amerisure requested that any future benefits be conditioned on Jones' participation with the recommended rehabilitation of weight loss.

Louisiana Revised Statute 23:1226(B)(3) allows an employer to seek a 50% reduction in a claimant's weekly compensation based on a claimant's refusal to accept rehabilitation that has been deemed necessary by a workers' compensation judge.

The Workers' Compensation Judge (WCJ) denied Amerisure's motion, finding Jones had not refused to cooperate with the rehabilitation services offered.

The Louisiana 1st Circuit Court of Appeals found no error in the WCJ's findings.

It explained that the statutory reduction in weekly compensation for a claimant's refusal to accept rehabilitation "is penal in nature and should be strictly construed."

As "the statute expressly states that the penalty of reducing the claimant's benefits by 50% can only be invoked in the event the claimant refuses to accept rehabilitation that the WCJ has deemed necessary," and the workers' compensation judge had made no finding that weight-loss rehabilitation was necessary, the court said, "we find the WCJ did not err in refusing to reduce the claimant's indemnity benefits pursuant to the statutory provision."

The fact that a prescription for weight loss was issued was not enough to show that the weight loss was "necessary," the court said, especially since the Weight Watchers prescription was Jones' idea.

The court acknowledged that there was medical evidence that Jones' injury should have resolved within a few months of the accident and that his pain symptoms persisted due to his morbid obesity, but the court said this was no indication that Jones had willfully refused to avail himself of the means for his recovery furnished by his employer prolonging his disability.

Quoting from a 1957 decision by the 1st Circuit called Guillory v. Reimers-Schneider Company, the court observed that "'the Lord who created some of mankind fat and some lean, also created men with unequal abilities to gain or lose weight, through different metabolisms, degrees of will-power, practical opportunities to follow different diets,'" and so a worker's failure to lose weight cannot, in itself, be regarded as a willful failure to cooperate with a medical treatment plan.

Amerisure's intentions may have been altruistic - seeking to return to good health, and good employment, a worker with a life long obesity issue by financial motivation. Or maybe it was just an issue of fairness - not wanting to pay for a condition over which there was no control and for which the employer did not cause.

And maybe Jones really has no conscious control over his weight so any motivation, financial or otherwise, is going to be ineffective.

Here's some lessons from this case:

1) each claim is different because each claimant is different, so what motivates one claimant may not motivate another claimant for treatment and return to work;

2) a treatment plan is only as good as the execution of the plan - there is no assurance other than the claimant's word that the Weight Watcher's regimen was followed and if the claimant's word is the only evidence then there is not much else a trier of fact can do; and

3) speaking of evidence, as the court noted, just because one doesn't lose weight when on a weight loss plan doesn't mean one wasn't following the plan.

Those in claims need to pick their battles. A person does not become morbidly obese overnight, and is not going to lose weight overnight either, or even over the course of eight months as with Jones.

Jones tried but couldn't do it. Amerisure tried but couldn't do it. Perhaps this case should not have been contested, but at least it seems that both sides tried.

Sometimes you win, sometimes you lose, and sometimes its a draw. That's just the way it goes.