In California, Cumulative Trauma Injuries are permissible. The theory behind cumulative trauma injury is that repeated exposure or micro-trauma over a period of time can be the source of an industrial injury. Common workers’ compensation cumulative trauma injuries include carpal tunnel syndrome, back sprains and strains, and stress/psyche injuries.
Some injured workers and some via their attorneys plead their workers’ compensation claims as being of a cumulative trauma nature. This article is intended to discuss the various things that can occur to an Injured Worker when a cumulative trauma claim has been pled.
What is the Legal Basis for a Cumulative Trauma(CT) Claim?
California Law provides for injuries of a cumulative nature to be compensable. Pursuant to Labor Code Section 3208.1(b), cumulative trauma is defined as “occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.”
How Does a Cumulative Trauma Pleading Impact a Workers’ Compensation Case?
First, with respect to investigating the validity of a CT claim, the Insurance Carrier will want to ascertain as to whether there were repetitive taxing activities extended over a period of time. This investigation can include the Carrier contacting your Employer to find out your job duties and what activities that you encountered on a repetitive trauma basis. Physicians or Psychologists can also question you concerning the various activities or facts which would constitute a cumulative trauma injury. Further, there may be requests for a formal job analysis in order to make a determination as to whether there was sufficient exposure or activity to give rise to an industrial injury. If the matter is an “occupational exposure” case, then there may be a request to obtain the Material Data Safety Sheets from your employer to determine if there was an exposure to offending agents that can give rise to the medical condition alleged. Finally, there will be Insurance Company Attorneys who can take your deposition and ask you questions as well.
How is there Drama when there is Cumulative Trauma?
Cumulative trauma injuries create much drama for injured workers. The drama is generated from the legal positions that can be taken by the Insurance Carrier to defend against the claim. The Insurance Carrier will actively seek other parties who could be liable for paying in full or in part your claim. This drama can include adding concurrent employers to the claim, adding new current employers to the claim, and filing new cumulative trauma claims on behalf of the injured worker. All of these actions can be done by the Insurance Carrier. In essence, the original CT claim can be “blown up” into more extensive litigation. Don’t worry, however. This should not be an intimidating factor in filing a claim. Consultation with an attorney concerning strategies when addressing CT claims, however, is strongly recommended.
“Date of Injury” Drama?
Date of Injury “drama” is important to the Insurance Carrier. The Labor Code has a special provision, Labor Code Section 5500.5, which determines which Insurance Companies are liable to pay you on your CT claim. Labor Code Section 5500.5 provides that liability is limited for the CT for the last year of occupation exposing you to the hazards of the occupational disease or cumulative injury.
In sum, all of the employment along with insurance coverage within the year prior to the ending date of the cumulative trauma injury is subject to liability. This can include additional Insurance Companies, i.e. if your company changed insurance coverage in the middle of the last year. It can include additional carriers if you worked at another employer, either consecutively or concurrently, during the year prior to your date of injury.
More “Date of Injury” Drama: What is the “Legal” Date of Injury?
As noted above, liability for a CT applies only to the carriers in the last year prior to the ending date of the injury. Insurance Companies, therefore, to avoid liability, will try to manipulate the date of injury in a manner to avoid liability. This can either mean that they will attempt to move the date of injury backward in time or they will try to move the injury forward in time. As the Injured Worker, you have been placed in a legal time machine!
The basis for how the date of injury can be changed is Labor Code Section 5412, which provides that the “date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”
The Insurance Company will focus on when the injured worker first suffered disability. Also, they will focus in on when the injured worker either knew or should have known of that disability. There will be in depth questioning concerning in deposition by an Insurance Company Attorney to ascertain this information.
Based upon the data provided, there may be a basis to move the CT date to an earlier date than what was listed on the claim form.
Western Growers’ Drama?
As an Injured Worker who has had an encounter with Defense Attorney concerning a workers’ compensation CT claim, it is likely that they have heard the term “Western Growers.” Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., 16 Cal. App. 4th 227, 20 Cal. Rptr. 2d 26, 1993 Cal. App. LEXIS 575, 93 Cal. Daily Op. Service 4284, 58 Cal. Comp. Cases 323, 93 Daily Journal DAR 7276
“Western Growers” is a famous workers’ compensation case which addresses whether there can be two periods of cumulative trauma as opposed to one. The case lays out some framework on the issue. As an attorney, it is cool and it sounds like you know something when you utter the words “Western Growers.” What is funny is that some insurance company attorneys truly do not understand the meaning of the case. They do, however, know enough of it to make them dangerous!
In sum, double the drama! As a result of “Western Growers,” an Insurance Company may file additional CT claims concerning your case. Western Growers can allow for more Employers, Insurance Companies, and Defense Attorneys to be involved with your case. You can be guaranteed that they will all spout out the words “Western Growers” at some time in the handling of your case.
How Does “Western Growers” impact my case?
“Western Growers” case can impact an injured worker in two levels. First, it can impact what the “legal date” of your injury. Second, it can create “multiple” CT claims. If you have had concurrent or consecutive employment, those Employers may be joined to your case.
In double summation, additional employers, carriers, and dates of injuries can lead to additional depositions, records requests, and medical evaluations. These activities will most likely extend out the time that your case is resolved.
Should I be “Dramatized?”
Of course! Initially, all of this drama occurring in your work injury claim can be overwhelming. Your simple CT work injury claim is taking on a life of its own! Don’t panic, it will all come to pass. Be patient, there may be additional delays on the resolution of your matter. Sometimes, however, it can work in the benefit of the Injured Worker in that they may receive greater compensation or benefits because of the addition of new parties.
As an Injured Workers, where can I get advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.