California could lead charge on cumulative trauma claims law: PanelPosted On: Sep. 4, 2019 2:41 PM CST
DANA POINT, California — Workers compensation stakeholders and employers should call on lawmakers in California to draft legislation that would help control expensive cumulative trauma claims in the comp system, according to panelists speaking at the California Workers Compensation and Risk Conference on Wednesday.
Panelists led a morning discussion on major concerns facing the comp system in California, with claims filed by workers with musculoskeletal pain and injuries that are “cumulative” in nature, meaning the injury emerged over time and may not be attached to one specific job, task, event or employer, topping the list.
“I’m an employer with a large number of employees… and I am right in the heart of it,” said Karen Fry, who oversees workers compensation claims at Commerce Casino, a large casino and hotel in Commerce, California, and said 78% of the business’s comp claims are cumulative trauma and 70% are post-termination, meaning they are filed after the employee leaves the job.
“I have post-termination claims (for workers who) haven’t been with us for four years and the judges are going, I think they just correlated work with this injury. That’s what we are dealing with,” she said, adding that the large mass of claims of this nature are being pushed into the system by attorneys.
She told the story of a card dealer on the casino floor who had a lawyer sitting at his table who told the card dealer to “call me if you are sore” from your work.
“I have applicants attorneys telling me… I am going to have to add body parts; that’s the reality,” said Ms. Fry, adding that the exaggeration or expansion of an injury is usually done at the hands of lawyers, working with doctors.
“It’s an epidemic in California,” said Jeffrey R. Einhorn, chief executive officer of the Sacramento-based NonProfits’ United Workers Compensation Group Inc., which provides comp coverage for nonprofit organizations statewide.
“We’ve seen cases from people who have worked there for a month and they file a claim… at the end of the day we are spending anywhere from $25,000 to $100,000 to settle these claims,” he told attendees.
Kurt Leisure, vice president of risk services for Calabasas, California-based The Cheesecake Factory Inc., said the challenge is defining legally what constitutes a cumulative trauma claim.
“It’s hard to define what is legitimate; there are some legitimate (cumulative trauma) claims… but it’s not black and white,” he said, adding that legislature could help with the problem by defining cumulative trauma and setting parameters for employers.
Agreeing, Mr. Einhorn said it will take a coalition on employers to work this through.
“We did a pretty good job with (Senate Bill) 863,” he said of the state’s last successful comp reform package enacted in 2013 that helped reign in on provider fraud, opioid prescribing, and other costly issues in the state. “There was a fairly big coalition of folks who got together to pass SB 863… So we need to get a coalition of folks to define what this cumulative trauma is. We get a group together, present it to one or two legislators and see what we can do”
“it’s an epidemic in CA… no other state has (this problem),” he said.
“Cumulative trauma is the real outlier,” said Bruce Wick, Director of Risk Management, Sacramento-based California Professional Association of Specialty Contractors, a non-profit trade association of independent specialty contractors and related businesses.
Mr. Wick, however, is skeptical that the labor stakeholders and politicians who support labor will buy in. “Labor will never give up cumulative trauma... but they know it’s out of control.”
Karen Townsend, senior manager for health, safety and environment for Gaithersburg, Maryland-based food services company Sodexo USA, said that employers themselves can get a handle on such injuries, of which there appears to be no precise onset, by providing services for employees on site.
An occupational health nurse, Ms. Townsend said massage therapy and nurse on site could help with the problem. “There are ways to prevent these types of injuries,” she said. “There are things that can be done with cumulative trauma… You just need to think outside the box; value your employees and you will see opportunities to reduce injuries.”