SeattleThe answer is yes according to the case McKenzie vs Verizon Business Network last decided on October 17, 2012. To me this case is a policy case, it’s a watershed where policy will be made; a case where there is a line drawn in the sand and the defense will make the "we can’t go here" argument. This case has been going on since at least 2003 from an injury that occurred on December 26, 1999. Look at the dates from start to not-quite-finished – 13 years and counting.

I find this case to be more interesting than I normally do. In the past I represented a woman with a similar problem, but our case was settled before hearing. In that case the woman was injured handling about 300 surgical trays stacked on metal racks. The repetitive motion with the weight caused a stress injury to her sterno-clavicular joint. That’s a joint connecting your sternum (chest bone) and the clavicle (collar bone). She had large breasts that coupled with the work related problem would not allow the sterno-clavicular joint stain to heal. The doctors ordered, and a very conservative doctor, a breast reduction which would have the effect of reducing the joint stress. The Deputy who handled the alternative medical care hearing voiced approval and that pressured the opposition to reconsider their position and we settled the case and they avoided the written decision.

Melinda McKenzie’s problem is a little different and the final opinion out of the Court of Appeals finds against her claim because the court finds insufficient evidence the case should have been allowed to be reopened. I agree with the dissenting Justice, Danilson that she met the burden of proof to have the initial decision reopened. [See page 25 of the decision.] But of course I don't sit on the bench so my opinion doesn't count in this instance.

“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.”

Clearly the length of time this case has been being litigated, the number of appeals, the tenacity of the parties to seek justice for their clients, the length of the appellate court decision and the type of surgery involved all point to a watershed decision with major consequences for all involved.

"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."

So I wonder, what do you think, assuming she met her burden to reopen the original decision should gastric bypass surgery be covered under workers’ compensation when it is necessary to treat an underlying injury?

You be the judge….

Decisions, I’ve strung all the decisions together in one pdf document. Link.

For an additional and opposing view see Latest News by Sheena Harrison, October 19, 2012

Court Rules Employer Does Not Need to Pay for Employee's Gastric Bypass.
Workforce Management
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.

Steve Lombardi
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Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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