Issue:
Under Illinois Worker’s Compensation Law, is bariatric or gastric bypass surgery allowed as a medical expense if it is necessary to treat a work-related injury?
Brief Answer:
Yes. Under Illinois Worker’s Compensation Law, a respondent will be liable to pay “reasonable and necessary” medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to the work injury for the respondent to assume liability for medical expenses.
If a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery or weight loss treatments versus multiple failed attempts to treat the work injury. Resultant weight gain, regardless of causal relation to the work injury must also be considered in determining whether bariatric surgery will be deemed by the commission as “medically and reasonably necessary.”
Discussion:
Under Illinois Worker’s Compensation law, where a petitioner has a pre-existing condition that must first be cured in order to successfully treat a compensable work-related injury, a respondent is liable to pay medical expenses for the preliminary treatment regardless if the pre-existing condition is “related” to the work injury. Timothy Wilson v. Siegles Home & Building, 02 IL. W.C. 18002 (Ill. Indus. Com’n 2008). A petitioner must show through the advisement of a treating physician or through secondary opinions that the preliminary treatment is “reasonable and necessary” and incurred as a “necessary part” of treating the compensable work injury. Wesley J. Whitten v. Central Cartage, 94 IL. W.C. 49516 (Ill. Indus. Com’n 1999); Edwina Ellegood, v. Burwell Oil Serv., 04 IL. W.C. 26563 (Ill. Indus. Com’n 2008). Furthermore, this rule holds true if a compensable work-related injury either exacerbates a pre-existing condition or causes a new condition to form. Timothy Wilson, 02 IL. W.C. 18002.
A pre-existing condition “exacerbated” by a work-related injury, is a “reasonable and necessary” medical expense and is causally related if pre-treatment is necessary to safely cure an underlying work injury. In Wesley J. Whitten v. Central Cartage, the petitioner sustained a compensable work injury after he slipped on ice and fractured his hip. 94 IL. W.C. 49516. The petitioner had a pre-existing, ten-year history of peptic ulcers. Prior to authorized hip surgery, the petitioner’s treating physician found evidence of an actively bleeding ulcer, which was confirmed through an ordered endoscopic exam. The ulcer was first treated to stop the bleeding before the hip surgery proceeded. First, the arbitrator found that the respondent’s unpaid medical bills for the GI treatment were reasonable and necessary medical expenses incurred as a necessary part of conducting hip surgery. Because the petitioner had lost blood from his hip fracture, the arbitrator reasoned that the petitioner could not have had hip surgery without first doing the GI work-up to evaluate the safety of the surgery. Second, the petitioner’s treating physician testified that the petitioner’s pre-existing condition was aggravated by the work-related injury. The arbitrator reasoned from this testimony that all medical treatments, including the GI work-up, were causally related if they were incurred to cure the petitioner’s work injury.
Preliminary treatment of an exacerbated pre-existing condition or newly acquired condition that results from a work injury need not be causally related to become a “reasonable and necessary” medical expense. In Timothy Wilson v. Siegles Home & Building, the petitioner sustained a work-related neck injury. 02 IL. W.C. 18002. The petitioner was obese with a large frame. A post-myelogram CT scan showed multi-level abnormalities, including nerve root and spinal cord compression, which in the treating physician’s opinion required surgery. At the request of the respondent, an IME physician opined that the petitioner did not need surgery. The petitioner’s inactivity from his injury caused him to gain more weight and as a result, developed Diabetes Mellitus. The respondent denied any requested surgery.
After the arbitrator approved a settlement contract, the respondent approved and paid for a cervical anterior disc fusion at multiple levels. Due to the petitioner’s anatomy, the treating physician was unable to successfully perform the surgery, and recommended a second surgery. As a result of the first surgery, the petitioner developed complications, including a deep vein thrombosis, pulmonary emboli, and a pilondial cyst near his coccyx that, because of an infection risk, needed to be surgically removed before the second surgery. The treating physician also recommended pre-surgical treatment including a weight loss plan, nutritional counseling, and injections to control his diabetes. The respondent refused to authorize any of this treatment.
The Commission held based on these facts that the respondent was liable for the costs of all medical treatments recommended by the treating doctor, including the medical expenses for the preliminary treatment of the petitioner’s diabetes and the pilondial cyst “regardless” of whether those conditions were related to the work-injury. The Commission reasoned that “treatment of these conditions was reasonably necessary to cure the Petitioner of the effects of the accidental injury.”
A treating physician “must recommend” that pre-treatment, such as gastric bypass surgery, is a medical necessity prior to treating a work injury. The pre-treatment cannot be a secondarily beneficial to the petitioner. In Edwina Ellegood, v. Burwell Oil Serv., petitioner sustained a work-related knee injury. Post-injury the petitioner had undergone gastric bypass surgery, and as a result had lost one-hundred pounds. 04 IL. W.C. 26563. The respondent disputed liability for payment of the gastric bypass procedure. The arbitrator found that although the petitioner’s leg condition improved as a result of the surgery, the petitioner ultimately failed to prove the procedure was reasonable and necessary. The arbitrator reasoned that the improvement to her leg from the gastric bypass was a secondary benefit. Although evidence from the treating doctor retroactively stated the petitioner benefited, the doctor did not specifically recommend any type of weight loss prior to the gastric bypass.
Although not law, Hennessy and Roach’s defense of respondent, City of Chicago, in Dave Antunez, v. City of Chicago, 06 WC 36891, provides an example of a how to approach a treating doctor’s recommendation for bariatric surgery. Here, a morbidly obese petitioner sustained a back injury during the course of employment. The petitioner’s treating doctor recommended that he undergo a lumbar fusion. It was determined by the physician that the fusion would have a better success rate if the petitioner first underwent gastric bypass surgery in an effort to relieve stress and strain on the treated area. The physician reasoned that, because the petitioner was morbidly obese and had actually gained weight as a result of the immobilizing nature of his injury, other forms of weight loss would be futile. Respondent scheduled two IMEs for second opinions. The IMEs also confirmed that the fusion would be more successful if the petitioner underwent gastric bypass surgery. The respondent conceded and reasoned that the cost of multiple fusion attempts would be greater than the cost of gastric bypass surgery. Otherwise, the respondent would have disputed the surgery.
Although not governing in this jurisdiction, a recent Indiana case awarded gastric bypass surgery to a six-foot, 340 pound petitioner who sustained a back injury in the course of employment. PS2, LLC., v. Childers, 910 N.E.2d 809 (Ind. App. Ct. 2009). As a result of the immobilizing nature of his injury the petitioner started to gain weight. The petitioner’s treating physician, as well as an IME doctor, suggested that he should seriously consider lap-band surgery in order to decrease the risk and increase the success of the prescribed spinal fusion. The Indiana Appellate Court held that claimant’s weight condition, combined with his work-related injury to his back, produced a single injury. Therefore, the claimant was entitled to receive secondary medical treatment, in the form of lap-band surgery. This would help the claimant lose weight, as a precursor to back fusion surgery to treat the work-related back injury. There was no evidence that claimant had a weight condition prior to his injury that impaired his health or required intervention. Furthermore, the claimant’s lower back pain following the injury rendered him nearly immobile, which contributed to weight gain.
Conclusion:
In conclusion, following Illinois Worker’s Compensation law, a respondent will be liable to pay reasonable and necessary medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in most cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to work-related injury for the respondent to assume liability for medical expenses.
Once again, if a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery versus multiple failed attempts to treat an underlying condition. Weight gain, whether or not causally related to the work-related injury must also be considered in determining whether bariatric surgery will be deemed “medically and reasonably necessary.”
Post provided by Quinn Brennan – Attorney with Hennessy & Roach.
Post Provided by Gene Keefe of 
