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Death by 1,000 Paper Cuts – Defending Cumulative Trauma Claims in Illinois
The act of manually turning a key or using a screwdriver does not require an incredible amount of force. That said, performing the same forceful activity over and over again can sometimes lead to a medical diagnosis of carpal tunnel or cubital tunnel syndrome, with no simple way to isolate a particular event which caused the injury.
In Illinois, defending such cumulative trauma (or repetitive trauma) cases require extra care. A claims handler is often playing “catch up” due to a very generous manifestation date construction by the Durand decision, allowing the ultimate “accident” to occur on the date when the medical diagnosis of the alleged injury occurred or the claimant can no longer work due to the claimed injury. Durand v. Indus. Comm’n, 224 Ill.2d 53 (2007). In addition to potentially extending the statute of limitations period, the employer may not have any idea the claimed injury occurred until after a medical opinion has been rendered.
A solid independent medical examination is key in defending these types of claims. The claimant may provide subjective self-serving statements as to the extent of effort required to perform his/her job and may overestimate the frequency of certain tasks. The following strategies should be considered to provide the IME physician with enough objective information to provide a persuasive opinion for the Arbitrator:
- A thorough investigation into any prior claims. Serial filers at the Commission may have previously claimed the same cumulative trauma, but due to a previous IME opinion, the claimant’s attorney may have settled for much less than full value, leading to a repeat claim. Do not make extra work for yourself when you could potentially piggyback on a prior claim defense. If an Application has been filed, subpoena the prior claim file.
- Make sure to provide the physician with basic information as to the claimant’s work history. We recommend checking the employer’s personnel file to see if the claimant has a lengthy work history with the current employer, as well as any prior jobs where cumulative trauma may have occurred.
- A claimant’s past medical history may offer the greatest defense to a cumulative trauma claim. A claimant’s gender, age, weight, smoking history, and comorbidities (such as a diabetes diagnosis) can all point to a non-work basis for the development of a carpal tunnel diagnosis. Additionally, a thorough medical records review (with the help of a medical canvass and a signed HIPAA release) can point to prior instances of similar symptoms.
- If you obtain a recorded statement, make sure to ask the claimant to describe his/her job activities in detail, including the number of times a particular activity is performed per day. You should also confirm any comorbidities and verify when the claimant first noticed symptoms. A recorded statement may not be sent to an IME physician, but may be used to impeach the claimant’s testimony at trial.
- Always try to obtain a written job description for the physician to review. Often, a job description will provide some idea of the duration of specific types of activities, which can be helpful for a doctor to rule out whether the duration of the exposure would really be a cause of the claimed injury.
- Accurate video job demonstrations can be incredibly useful. The claimant’s treating physician may be relying solely on the claimant’s recollection of job activities to base his/her opinions on causation. Even a short video (a couple of minutes) can clarify job duties, and bolster the physician’s persuasiveness with the Commission. Just make sure to have someone available to lay the foundation for the video at trial!
- If an employer is experiencing a rash of cumulative trauma claims, it may be beneficial to consider obtaining the opinion of a human-factors engineer (or ergonomics expert) to quantify the amount of force a worker must apply to perform a task and the frequency of the particular task. An IME may rely on such anticipated testimony, and the analysis can be reused for other claims, which might be money well spent.
As you have likely seen, one successful cumulative trauma claim at a particular employer can lead to an outbreak of subsequent claims, leading to increased costs and premiums. Since cumulative trauma claims require a little extra attention, lean on your trusty defense counsel to help prepare the best possible defense in advance of your IME. As a doctor’s opinions are only as good as the information provided, a robust IME packet can improve your chances on defending these tricky claims. Please feel free to reach out with any questions regarding defending cumulative trauma claims.