Cumulative Trauma Claims Fuel Litigation

A recent Workers’ Compensation Institute (CWCI) study published in a Research Note, Cumulative Trauma and Litigated Claims in the California Workers’ Compensation System, examined the growth of cumulative trauma (CT) claims as a share of litigated claims in the California workers’ compensation system and explores the claim characteristics of CT claims. Based on a sample of 1.4 million California work injury claims from 2010 to 2022, the study found that statewide, CT claims increased from 29.4 percent to 37.5 percent of all litigated claims. Over 48 percent of CT claims in the Los Angeles area were litigated, rising from 38 percent in 2010.

CT claims involve physical or mental injuries that arise over time from repetitive stress, motion, or exposures, rather than from a specific event or accident. Common claims in workers comp are carpal tunnel syndrome, tendinitis, hearing loss, and gradual onset back injuries.The claims have a significant average cost and a high litigation rate.

Not surprisingly, tenure has a strong influence on CT rates. In the study, employees with less than a year of tenure at the time of injury had a much lower CT rate (26 percent) than more tenured workers. CT rates rose incrementally as tenure increased, climbing as high as 49 percent among workers with more than 10 years on the job.

The type of industry also is a predictor of CT rates and litigation. In the manufacturing sector, CT claims accounted for almost half (48.8 percent) of the litigated claims. The food service sector had the second highest CT rate, with 46.9 percent of the claim, while the agriculture sector had the lowest CT rate (24.2 percent).(The farming industry is often exempt from certain reporting requirements so underreporting is prevalent). Notably, age and average weekly wage are not strong predictors of CT rates.

Why are litigation rates high?

CT claims are extremely complicated and disputes arise for many reasons. The most common dispute is work-related causation. Sometimes there is little or no objective medical evidence that proves causation or degree of injury and it’s difficult to establish a connection between the job and the injury. Many of the injuries can commonly occur outside the workplace, some develop naturally as people age, and some are exacerbated by comorbidities.

Timing is another common reason for litigation. Unlike claims involving a specific incident, CT claims occur over an extended period. Since there is no specific “date of injury” with a CT claim, the timeline is complicated, and reporting leads to many inconsistencies in the claims process. The date of injury is typically established as the first day a worker suffered the disability and knew or should have known that the job was the source of the injury, which leaves room for interpretation and statute of limitations issues.

Return to work may not be a goal because many of the claims are filed post-employment. Psychosocial risk factors, which often prolong disability and return to work, are common in musculoskeletal injuries. Further, other employers may be responsible for sharing the costs associated with a claim. Suspected fraud can also be a factor.

Most states permit CT compensation claims, but the definitions and guidelines vary widely, according to the Workers’ Compensation Research Institute, which issued a state-by-state analysis in 2022. Virginia’s law is most restrictive limitedly covering hearing loss and carpal tunnel syndrome. Florida has no statutes on cumulative trauma claims, so none are prohibited. In many states, a “causation bar” is set. California has a very low threshold to prove CT claims, requiring one percent industrial or work-related causation and a simple “preponderance of evidence” standard of proof, making it difficult to contest claims. State courts have been divided on the issue.

The cases can be difficult to win for employers who often have the burden of proving that the CT injury wasn’t caused or contributed to in the course of employment. Whether to move forward with litigation or settle will depend on the specific facts of the case. An early and thorough investigation should include a comprehensive analysis of the worker’s day-to-day work activities, a review of repetitive trauma claims by employees in similar roles, the worker’s medical history and pre-existing conditions, former employment, and social media and background checks. The testimony of credible, independent medical experts is critical. Data from regular ergonomic assessments can be a valuable tool when cases are litigated.

Of course, it’s best to be proactive in eliminating the risks of injury and avoiding litigation. Ergonomics has moved beyond physical workstation adjustments for individual workers and now also focuses on administrative controls, like job rotations, and designing processes or engineering solutions to eliminate risk. Timely and explicit communication with the worker can prevent misunderstandings and build trust.

To learn more about cumulative trauma claims and litigation, schedule an appointment to speak with one of our financial professionals.