Grinberg: Another Item on the Wish List: CT Reform
Wednesday, November 23, 2022 | 0
With Hanukkah and Christmas coming up soon, I thought he’d share another one of the items on my workers’ compensation wish list.
Since it seems that if we eliminated cumulative traumas in California altogether, roughly half the industry would be without a job, how about something a bit more realistic: CT reform.
The frustrating thing about cumulative traumas is that the standard for a CT is so low and the deterioration of the human body is so universal, California CT has become a catch-all. Is the claim barred by a post-termination defense? That’s fine, just plead it as a CT. Did applicant not get the qualified medical evaluator specialty she wanted? That’s fine, just plead it as a CT and get a new panel.
Some applicants' attorneys even claim that the companion CT entitles applicant to an additional Supplemental Job Displacement Benefit voucher or additional total disability for non-overlapping periods. Absurd, I know. But still, the allegations waste precious defense attorney and Workers Compensation Appeals Board time.
So how would I reform CTs in California, if not eliminating them altogether? Simple. Raise the bar on AOE/COE for cumulative trauma claims to match that of psych claims: predominant cause.
If there is a diagnosis that applicant alleges is industrial, then the burden should be on applicant to prove, by a preponderance of the evidence, that the predominant cause of the cumulative trauma is more than 50% by actual events of employment.
Now, I’m sure the applicants' attorneys are demanding I turn in my California Bar card, and the lien claimants are clutching their pearls and seething at this idea. But the logic is sound and follows the exact same logic as that which guided a raised bar for psych claims.
CT claims can be used to retaliate against employers and are, for the most part, maneuvers around statutory defenses.
They are also so entangled with the normal decline of the human body that they have turned employers and the workers’ compensation system into universal health care providers. Any affliction that affects the human body, if it was in the slightest way accelerated while applicant happened to be working, becomes a CT claim.
In my estimation, that presents a reasonable compromise between the absurdity that is the cumulative trauma theory now and the secret desire of every defendant in California to have CTs banned altogether.
What do you think?
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.