PS2, LLC, D/B/A Boston’s Gourmet Pizza v. Adam Childers


Indiana Court of Appeals
August 6, 2009

Rick Gikas:  Plaintiff counsel

Kevin Kearney:  Defense counsel

Darden, Judge.

Facts & Procedural History:

Childers suffered an injury to his back when he was struck in the back by a freezer door.  His claim was accepted as compensable.  At the time of his accident on March 28, 2008, Childers weighed approximately 340 pounds.  Fusion surgery was recommended, but the doctor said that Childer’s surgery would be “doomed to failure” unless he lost some weight.  On September 28, 2008, his weight had increased to 380 pounds.  The authorized treating physician recommended that Childers look into lap band or gastic bypass surgery to reduce his weight.

Boston denied authorization of the weight loss surgery arguing that it was not obligated to pay for Childer’s weight problem.  The Board determined that Boston was responsible for the weight loss surgery finding that Childer’s pre-existing medical/health condition combined with the accident at work to create a single injury for which Childers was entitled to treatment.

Judgment:  Affirmed.

Issue:  Whether the Board erred in awarding secondary medical treatment, including surgery for weight reduction, and TTD benefits to Childers.

Holding & Rationale:

The Court of Appeals affirmed the Board’s decision.  The Court seemed to give great weight to the fact that Childer’s weight increased by 40 pounds in the few months following his accident due to his inactivity from his back pain.  The Court noted that although Childer weighed 340 pounds at the time of his accident, there was no evidence that his weight was impairing his health or required treatment.  It was only when he injured his back and became basically immobile that his weight required treatment.  The Court also found that the defendant’s argument that the plaintiff had refused to undergo a medial examination, because he had failed to lose weight as recommended by the physicians, and was thus not entitled to TTD benefits was without merit and rejected.

Concur:  Bailey, J., and Robb, J.

Posted on 12/18/2009

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