Cumulative trauma injuries are quickly becoming one of the more difficult areas of law for clients to deal with in California workers’ compensation claims. Because the employer, to a great extent, takes the injured worker as it finds him in California, there is a legal fiction of the cumulative trauma created by attorneys in many cases. If you are dealing with a CT claim, you usually you have defense counsel already involved. The reason is clear: on December 19, 2016, the California Workers’ Compensation Research Institute (CWCRI) stated that, out of 41,000 CT claims and 608,000 non-CT claims that received compensation benefits between 2005 and 2013:
- 91% of continuous trauma-lost time claims had legal representation – twice the attorney involvement than all other claims and
- Workers claiming cumulative trauma were 10 times more likely to claim other injuries.
What Is the Best Way to Defend a CT Claim?
First you have to determine the legal date of injury. That will determine the amount and extent of your exposure. This is particularity true if there are multiple insurance companies and/or employers in your claim. The goal is often to move the CT to obtain the least amount of exposure as possible. Per Cal. Lab Code §5412, the date of injury for a CT claim requires disability and knowledge of injury. “Disability” can be defined in a variety of ways:
- The allegedly injured worker missed time from work.
- The allegedly injured worker was placed on modified duties or self-modified their duties.
- The allegedly injured worker received treatment, sought treatment, or self-medicated.
Much of the argument concerning the date of injury surrounds the injured worker’s “knowledge” that he or she sustained industrial injury. Per the Code, the injured worker either knew or should have known that he suffered an injury at work. You often need a physician to advise the injured worker of his injury or that his disability is work related. Often times, however, you may find this information exists in the medical records or reports, but that information was allegedly never discussed with the worker. Often, however, you may find that the worker told the doctor that he was injured at work and this information demonstrates the requisite “knowledge”. Occassionally, a defense attorney can show that an applicant’s prior workers’ compensation history demonstrates “knowledge” of the workers’ compensation system and imputes knowledge of injury in a particular case. The issue of “knowledge” can also come down to credibility.
With applicants who have worked for many years, sometimes there can be more than one CT period, which can be helpful depending on insurance coverage. The physician or judge needs to find two separate and distinct periods of injury.
One of the best ways to determine the date of the CT is to depose the applicant to find out about his hobbies and medical history. In addition, obtain his personnel records for previous and current job descriptions. Would the job duties really cause the alleged injury? How long did he work in the injury-exposing position? Speak with supervisors and obtain prior health, employment, and litigation records.
You may also want to obtain a med-legal evaluation with a physician and have him describe how and why, medically, the date of injury is a cumulative trauma and not a specific injury or whether there are other cumulative traumas or another employer with liability.
The discovery noted above will help to determine the feasibility of any defenses, which include a reporting of the injury subsequent to termination (“post-termination defense”), the statute of limitations or the nature and extent of a given CT injury.
Having good employer witnesses is important for a post termination defense as it typically comes down to a question of credibility for the judge. The judge will have to determine if the applicant is credible and reported the injury to the supervisor or if the supervisor is more credible and finds that applicant did not report an injury.
As for the nature and extent of a CT claim, depending on the length of employment, the applicant’s age, as well as applicant’s health will determine the nature and extent of the alleged industrial component. This is determined by obtaining applicant’s health history via deposition, as well as subpoenaed records and medical evaluations.
Depending on the facts of your case as well as the complexity, it can be helpful to use a quality AME or obtain a panel QME. This is particularly true when the CT claim is admitted, but there is a debate as to the date of the CT and percentage of liability. An AME is typically seen when there is more than one employer. There are cases where you may not want to roll the dice on an unknown QME and risk poor and convoluted reporting in this area.
Further, with the recent decision in City of Jackson v WCAB (Rice), there is now the availability of apportionment of permanent disability related to genetics and heredity. This case may have some value in the discussion of causation and not just apportionment – a typically challenging issue for physicians, judges and legal practitioners alike.
In Rice, the QME concluded that the employee’s disability—neck, shoulder, arm, and hand pain—was caused by cervical degenerative disc disease, and the disease was, in turn, caused in large part by heredity or genetics. This case is important because, like the psychological issues in the 90s, when a workers’ compensation attorney figured out that psyche was covered under comp, the legislature made the causation standard higher than 1%. It is possible that this case and the legal discussions surrounding it will move the legislature to consider increasing the causation standard for a CT higher than 1%, which is what has happened in other states.
As Employers, How Can You Make a CT Claim Work for You?
First and most obvious is the idea of joining another employer or carrier in the CT claim because of injurious exposure extending to that entity, as well. Once you have knowledge of concurrent and/or subsequent employment, the possibility of joinder may exist. Consider conducting subrosa in a CT claim to confirm the existence of other employment, as the applicant may be working “under the table”. Further, run a social security check to confirm actual employment. Subpoeana the employment records to determine the “other” job description. File a Petition for Joinder of the proper party once you have a doctor (PTP, PQME, or AME) saying the other employment in some way contributed to the injured worker’s disability.
In addition to joinder however, consider more than your statutory defenses to a CT and don’t deny the claim, but delay it and do your discovery: once a claim is denied the employer has lost all medical control over the case. With medical control still in place, have a physician in your MPN do a quality evaluation of the individual, his claim and the collection of evidence and medical history.
Also, if your medical or factual evidence shows that the injury is not really a specific injury as plead, but could be defined as a CT, consider filing the Application for that. Many applicant attorneys use this strategy for purposes of applying Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418, which requires the issuance of a new QME panel when a new claim has been filed subsequent to the date of the original PQME evaluation. This case can be applied by applicant and defense alike. There are several recent cases addressing Navarro and the appropriate application of this opportunity. In fact, on May 26, 2017, the WCAB, on its own motion, issued an order granting reconsideration for further study and decision in the case of Gravlin v. City of Vista, 2017 Cal. Wrk. Comp. P.D. LEXIS 133. That case involved a firefighter with a cardiovascular injury and a skin cancer injury, plead as a cumulative trauma. The applicant wanted the Court to follow City of Anaheim v. WCAB (Ott) (2010) 75 Cal. Comp. Cases 371 because applicant worked without disability until the job ended and the period of injurious exposure was continuous throughout employment. Therefore, the argument is that there was no justification to create two different continuous traumas.
The defendant wanted the Court to follow Aetna Cas. & Surety Co. v. WACB (Coltharp) (1973) 35 Cal. App. 3d 329, 38 Cal. Comp. Cases 720 because, in that case, there were two separate and distinct periods of disability and the court found two separate injuries rather than one. We can see the determination in this case being applicable when applicant’s file skin and contents claims with only one alleged period of injurious exposure but a defense argument of different dates of injury because of the different dates of disability.
Also, in Hasley v. Frito-Lay, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS the Navarro case is again evaluated, holding that constructive notice of claims at the time of the filing of the claim form may be had. In that case, an unrepresented worker filed a specific date of injury – the day her hand started hurting – which was really the end date of a cumulative trauma per the PQME. Applicant’s counsel wanted a new panel in pain management and defendant wanted a finding of one injury to preclude that new panel; that injury being a CT and not a specific. The WCAB remanded the case to find out when claim forms were filed since there were only Applications filed in this matter and the Court seemed to suggest that Navarro would only apply for claim forms.
And don’t forget – the date of injury is not only a medical issue, but a legal one. The Court held in Webb v. The Vintage Club, 2015 Cal. Wrk. Comp. P.D. LEXIS 675 and Gonzalez v. Jezowski & Markel Contractors, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 348 that even though a medical practitioner may find the date of injury to be one things, the actual determination of the date of injury is a legal one for the court to decide. Therefore, if you don’t prevail with your medical evidence, you may have enough to convince the Court that, legally, the date of injury is otherwise. Just remember to be certain of your evidence or your argument so that you are not deemed to be bringing a frivolous argument before the Board, lest you open yourself up to penalties or sanctions under Cal. Lab. Code §5813.