It hurts to write this article. Cumulative trauma (CT) claims are wrecking the California work comp system. Nearly every litigated work comp claim has a cumulative trauma aspect to it. But why?
According to Wikipedia a cumulative trauma injury is defined as, “An injury to the musculoskeletal and nervous systems that may be caused by repetitive tasks, forceful exertions, vibrations, mechanical compression, or sustained or awkward positions."
This makes sense. Of course, we want injured workers exposed to conditions that create this type of injury to be treated. However, the system is being abused beyond this definition and it is legal. It may surprise you to find that it is not the payout of the permanent disability to the injury that is causing the problems. It is providing the medical along the way.
PROBLEM: Labor Code Provision to Admit Post Termination CT
Many times these claims are filed in a post-termination scenario. Section 3208.3(e) bars a claim which is filed after notice of termination if the claim is for an injury occurring before the notice of termination.Seemingly this would be the defense to prevent abuse of cumulative trauma claims, at least in a post termination scenario, but there is a problem.
Under Section 3600(a)(10)(B), "evidence of the injury" has been interpreted to mean evidence of symptoms which could be caused by the injury. Therefore, medical records of pain prior to notice of termination could be sufficient to avoid the application of the section even if there is no discussion of the connection to work in the records. This provides a path for any prior medical to enter the work comp system despite how it originated.
THE BIGGER PROBLEM: Out of Network Medical Costs
When an employee litigates the attorney for the injured worker will frequently submit a notice of change in the primary treating physician that is out of the medical provider network (MPN). The insurer will deny this treatment with formal documentation to the medical provider, the attorney and the injured worker. However, there is still a path for this medical provider to recover treatment costs. The services provided in this scenario are done so on a “lien” basis. Meaning the provider will have to fight to recover costs for their services on a claim that is denied and/or the provider is outside the network.
Why does this matter? The attorney knows that the process to defend lien assertions is difficult and time consuming. So, frequently they will have treatment done outside the network and provide little to no documentation as to what this looks like. They do this because they know it can be used to negotiate the claim.
When an injured worker and the insurer disagree on the causation or the nature and extent of an injury the path to resolve this dispute is done through an evaluation by an independent medical examiner. In California this is called a Qualified Medical Exam (QME). An independent physician is provided medical and case information from both sides and conducts an evaluation. This physician may be asked to determine causation (did it arise out of and during course of employment), the current state of the injury (has the employee recovered to maximum state) and the extent of injuries (permanent disability).
While this process alone is costly and time consuming (adds 6-8 months minimum to a claim), the real problem is the outcome. If the physician attributes even 1% work contribution to the injury then the insurer must deal with the medical treatment provided over this period of time to unapproved medical providers. These providers frequently treat in a way that is inconsistent with the medical guides and they charge for service in a way that is inconsistent with the fee schedule. A CT claim that takes 1-2 years to defend could easily accumulate $100,000 or more in medical costs.
SOLUTION: Resolve the Claim Early
Absolutely, cases exist that make sense to defend to the end. However, unless there is some change in the current work comp system the best resolution is to have an insurer that executes a thorough and prompt investigation, sets an early deposition and seeks to resolve the complete exposure prior to medical costs ballooning out of control. This is done through a Compromise & Release (C&R) that should include global language to prevent the employee from filing other future claims against the employer such as discrimination, which can be done for any number of reasons.