Cumulative trauma injuries—also known as repetitive trauma injuries—are among the more challenging claims to investigate and defend against in the workers’ compensation arena, as the claimed mechanism of injury is often ambiguous and fluid.
These types of injuries are also an increasingly prevalent category of filed workers’ compensation claims across the country. In California, for example, cumulative trauma claims doubled between 2008 and 2018. These claims will likely continue to increase as a result of the COVID-19 pandemic due to strained workforces across multiple industries coupled with increased production demands by consumers. It is important for employers and insurance administrators to strategize best practices so that they can mount sound investigation and defense strategies.
Cumulative trauma injuries are those that occur over time from repetitive body mechanics and movements. The most common dispute in a cumulative trauma claim is causation. Accident reports often describe pain, stiffness, weakness, or other maladies developing “over time,” and often the subsequently diagnosed conditions are ones that commonly occur outside the workplace, such as carpal tunnel, back pain, or joint pain. These conditions may also develop naturally as people age, making it critical to determine whether work activity contributed to the condition or, if relevant in your state, how much the work activity contributed to the condition.
Given these ambiguities, the following key strategies can be implemented to effectively defend cumulative trauma claims:
• Early and thorough investigation is key to setting up a successful repetitive trauma defense. The initial focus of an investigation should be a comprehensive analysis of the claimant’s day-to-day work activities. It is important to develop a detailed job description with the frequency, weights, and forces used in implementing each task. A video of the job in real time can be persuasive should the claim go to hearing. In addition, ask how many repetitive trauma claims were made by employees in similar roles.
• Investigate the claimant’s medical history. A prior medical treatment canvas along with an assessment of co-morbid contributing health conditions is recommended.
• Social media investigation and background checks often provide essential information into both activities and pain behaviors outside of work. Social media may offer key insights into a claimant’s life and hobbies. Evidence of activities such as regular workouts, participation in recreational sports leagues, and video gaming could factor into a diagnosis. Documented regular usage of computers, smartphones, tablets, and video gaming devices could also become relevant in a causation defense. Further, activity inconsistent with pain complaints and alleged capabilities is strong evidence at hearing as to the severity, or lack thereof, of the alleged cumulative trauma condition.
• Selection of a credible and informed independent physician to evaluate the claimant, the claimant’s health, activities, and the job details is critical. Supplying the independent doctor with a detailed job description and job video is necessary for defending these claims. The court’s decision will often come down to the medical opinions offered on causation. The better informed doctor will be more likely to prevail at hearing.
A recent repetitive trauma claim in Illinois highlights the importance of selecting a credible and informed doctor. An order picker in a retail plant alleged bilateral rotator cuff tears and cervical radiculopathy as a result of repetitively reaching into bins. When confronted with a detailed job assessment and ergonomic job analysis at deposition, the treating physician conceded he could not causally relate the claimant’s injuries to her job activities.
In another Illinois employer victory, the claimant, a laborer, alleged cumulative trauma resulting in carpal and cubital tunnel. The employer’s expert independent physician reviewed a detailed breakdown of the nature of the daily work activity and opined those tasks were not only not “repetitive,” but also the tasks completed in performance of the job would not contribute to or cause carpal or cubital tunnel. Further, a thorough investigation revealed prior carpal tunnel treatment. These cases demonstrate not only the importance of securing all of the relevant details regarding a claimant’s job, but also the importance of securing effective medical opinions and testimony.
To that end, it is always worth consulting defense counsel prior to securing expert opinions, even in non-litigated matters, to ensure all pertinent evidence is presented and the most effective questions are posed. Defense counsel can provide insight on court trends that impact your expert strategy and how the workers’ compensation courts in your jurisdiction view a potential expert in the event your claim does become litigated.
Employers can also take proactive measures to reduce risks and contain costs. One such measure is to enlist occupational injury and risk consultants to identify high-risk tasks. Once forceful and/or repetitive activities are identified, these consultants can offer strategies to actively manage and reduce risks. These strategies not only mitigate risk, but, when used at hearing, they also demonstrate limited exposure to high risk activities.
Employers should also manage risk by quantifying forces and frequencies in a given task. Regular ergonomic assessments help pinpoint and quantify potential stressors to further reduce risk. Quantification is likewise a valuable tool at trial to rebut a claimant’s testimony regarding the repetitiveness or forcefulness of her job. This type of clear objective data gives courts an accurate picture of which activities are causative cumulative trauma risks and, more importantly, which are not.
In today’s fast-paced work environments, it is clear some jobs will pose a risk of cumulative trauma injuries. By proactively addressing potential causes of these injuries, such as reducing forces or repetitive activities, employers better control risk. By aggressively and successfully defending claims that do not represent true repetitive trauma, employers can reduce exposures and claims costs.