Frightening Development in Cumulative Trauma Cases
Tuesday, April 2, 2013 | 0
Cumulative trauma cases involve workers who, over a period of time, develop physical medical conditions related to work. In other words, the employees do not undergo a specific event to cause their medical conditions, but develop them over time.
Due to the danger of abuse by workers claiming injuries, the code established a high standard of proof requiring workers to prove they were exposed to a danger or risk that is materially in excess of that to which people are normally exposed in their everyday lives. Additionally, the employee must prove the cumulative injury occurred by clear and convincing evidence. See Ala. Code §25-5-81(c) (1975).
However, a recently released case may have lowered the high standard of proof as required by the code. In Ex parte Johns (Ala. Civ. App. 2013), the employee sued for workers' compensation benefits, claiming a cumulative trauma injury to his back due to manual labor. His manual labor duties included bending, lifting and carrying items of various weights, standing, walking and climbing. The employee claims that performing this manual labor over the course of three to five years caused him back pain which would necessitate a surgery.
The case revealed that in 1996, the employee had a work injury which caused a disk rupture in his back. The employee was treated, underwent surgery and eventually went back to work. The employee then settled his workers' compensation benefits, leaving his medical benefits open for life. Beginning in 2008, the employee began having back pain again, and eventually was recommended surgery by his doctor in 2010. The employee then brought another workers' compensation claim under the cumulative trauma theory, alleging that the manual labor he performed at work caused an injury to his back.
There was competing evidence as to how much time the employee spent performing manual labor, as he was employed as a supervisor. Evidence suggested manual labor accounted for anywhere from 20 to 80 percent of the employee’s job, and that the manual labor was mostly in the light-to-medium duty range. No evidence was introduced to suggest that any of this was materially in excess of that to which people are normally exposed in their everyday lives. However, the court did not seem to grant much weight to the time the manual labor was performed. Instead, the court focused on the authorized treating physician’s testimony.
The doctor testified that the employee’s back pain was a combination of wear and tear that has occurred from working and the employee’s degenerative disc problems and weak disc from the prior herniation and workers’ compensation claim he had in 1996 for which he had already recovered. The doctor’s testimony shows that the employee’s prior back problem was likely a contributing factor to the employee’s current back complaints. The court ruled that the plaintiff had a compensable cumulative trauma injury and that the plaintiff was entitled to indemnity benefits and medical benefits for a new cumulative trauma injury.
If the employee’s medical benefits were left open, and this new problem was simply an aggravation, then why did the employee go through the trouble of filing a new claim under the cumulative trauma theory? Because the employee was attempting to get a second bite at the apple. He was trying to receive more money for his 1996 back injury, even though he had already settled his claim. What’s so surprising is the court allowed this to happen, when the doctor’s testimony clearly indicates that the pain is due to the previous injury.
So what does this mean for current employers? Well, for one there is an increased risk of employers being held liable for cumulative trauma injuries. The standard of proof has been lowered and plaintiffs' attorneys throughout the state will attempt to take advantage of this. However, the most troubling part for employers is that settling a claim for a worker’s on-the-job injury may not provide the same relief it once did.
Matt Dye is an attorney with Miller, Christie & Kinney in Birmingham, Ala. This column originally was posted on March 28 on the Workers’ Compensation Institute's website, and is republished here with permission.
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