Injuries to body parts that are caused by repetitive motion, frequent exposure to sounds, chemicals or even vibrations are among the most perplexing in the workers compensation sector.
Claims arising from cumulative trauma injuries, such as carpal tunnel syndrome, tendinitis and hearing loss, will likely rise given the aging workforce and an overall trend toward litigation, comp experts say.
How states address cumulative trauma injuries varies significantly, with some states — as well as some courts — tending to be sympathetic to workers, employer lawyers say. Employers have won some significant legal victories, though.
Concerns over cumulative trauma injuries stack up: Sometimes there is little or no objective medical evidence that proves causation or degree of injury; many claims are litigated, adding to costs and often taking several years to close; return to work is frequently not a given or a goal, because some of the claims are filed post-employment.
“It’s easy to know when a rock falls on somebody’s head —what the cause was, the circumstances that led to it —and you are able to identify it as work-related and what the injuries were,” said Bert Randall, principal at Franklin & Prokopik P.C. in Baltimore. “But with cumulative trauma claims, those claims arise over a long period of time (and) are much more problematic.”
Liberty Mutual Insurance Co. in 2022 released a report on the top 10 costliest workers compensation claims that said overexertion, other exertions and awkward postures — typical issues associated with musculoskeletal cumulative trauma — account for more than 28% of costs to the system.
“That’s what we are talking about,” said Craig Karasack, Fort Lauderdale, Florida-based product director of ergonomics and manufacturing technology at Liberty Mutual. Cumulative trauma is “a bit of a challenge because it’s very obvious when somebody falls and hurts themselves, or you know when something sharp comes in contact with the body because it’s immediate. The challenge with these types of injuries that we’re talking about is that the damage is done over time.”
“Cumulative trauma is on the horizon and is something we have to pay close attention to,” said Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association.
“As the population gets older, and there’s a chance of having more of these claims, there’s also the issue whether or not they’re work-related or part of general everyday life,” he said. “These claims can be pretty expensive and become a large cost driver if they get out of hand.”
The industry is seeing a rise in cumulative trauma injuries, said Neil DeBlock, Schaumburg, Illinois-based vice president, workers compensation claims, for Zurich North America.
The profile of an average worker is also contributing to the challenge, according to Jennifer Cogbill, Frisco, Texas-based senior vice president of GBCare with Gallagher Bassett Services Inc.
“We see an aging workforce with people with more physical health challenges,” she said. “We may not be as fit and healthy as we were 20 to 30 years ago, and some of those preexisting health issues will contribute to complications, pain and the opportunity for a cumulative trauma claim.”
Most states allow workers to be awarded comp benefits for some cumulative trauma injuries, although the definitions and guidelines vary, according to the Workers’ Compensation Research Institute, which issued a state-by-state analysis in 2022.
Virginia’s law, for example, covers only hearing loss and carpal tunnel syndrome. Florida has no statutes on cumulative trauma claims, meaning none are prohibited. In several states, including Oregon and Tennessee, injuries must be primarily caused by the work performed, leaving room for interpretation.
In California — said by several experts to be experiencing a “phenomenon” of cumulative trauma activity — 60% of cumulative trauma claims have indemnity components whereas only 35% of other claims do, according to a 2022 analysis by the Workers’ Compensation Insurance Rating Bureau of California.
Any changes to laws are usually slow, according to experts who say most states take a worker-friendly approach.
As of late January, only one state legislature in its current session has proposed tightening the law permitting such injuries. Oklahoma lawmakers are considering a bill that states the “date of injury for cumulative trauma shall be the last date of injurious exposure prior to the filing date of the Employee’s First Notice of Claim for Compensation,” which must be filed within six months after the first distinct manifestation of the disease or cumulative trauma or within six months after death.
Illinois in 2022 aimed to limit exposure with a bill that would have restricted conditions under which repetitive or cumulative trauma is compensable, providing “that gradual deterioration or progressive degeneration of the body caused by aging is not compensable as repetitive or cumulative trauma.” That bill died in committee.
Meanwhile, state courts are divided on the issue.
In California, most outcomes are worker-friendly or would require so much in medical-legal expenses that insurers will likely settle in some cases, according to attorneys. Some state courts, aligning with state laws, have been less likely to rule in favor of the worker.
The Louisiana Supreme Court in 2021 ruled that a 30-year-old fireman did not qualify for permanent partial disability due to hearing loss he suffered after years of exposure to loud noises because state law requires hearing loss for disability purposes be “solely due to a single traumatic accident.”
An appeals court in Ohio granted summary judgment to United Airlines Inc. in a case involving a flight attendant who alleged a cumulative trauma injury resulted from repeated chemical exposure from an in-flight air freshener because the worker failed to prove causation, in line with parameters set by state law.
Conversely, the Supreme Court of Kentucky in 2021 reversed earlier rulings that dismissed a cumulative trauma claim filed by a retired nurse suffering from “crippling injuries” to her neck, back and hands due to her alleged failure to provide a reasonable notice of her injury. The state high court ruled that the lower courts misapplied a 2018 law that established time limits on injury reporting.
The same court in 2021 also granted compensability — again, over the issue of time the claim was filed — to a Ford Motor Co. plant worker who suffered injuries to her neck and spine because of repetitive-motion duties going back to 2007. The worker testified that she had performed the same task 300 times per day.
Such claims are often litigated over causation, timing, comorbidities, and other factors, according to industry experts, who say early intervention and prevention are key.
“There’s a willingness among a lot of commissioners and judges to find that, even if there are comorbidities present, if there is a part of it that is work-related, they’re sympathetic to that,” said Mr. Randall of Franklin & Prokopik.
Cumulative trauma cases are “very difficult to win” for employers, said Nathan Levy, Atlanta-based partner with Levy, Sibley, Foreman & Speir LLC, adding that in Georgia, “you’ve got to show that this occurred pretty much somewhere else.”
Suspected fraud is also a factor, given the nature and timing of some injuries — post-layoff filings are common — and the lack of clear medical evidence, experts say. California, in particular, has gained notoriety for much post-employment claim activity.
“Like everything, there’s extremes on both sides, and somewhere in the middle we’re supposed to take care of the diligent worker,” said Jeffrey Adelson, general counsel and co-managing shareholder at Adelson McLean APC in Newport Beach, California.
“I just don’t think the legitimately injured workers should be thrown out and lose an opportunity to get what they deserve … because of others,” he said.
This article was first published in Business Insurance.
