The concept of accumulative trauma is quite simple, but it can lead to some very difficult litigation. It’s quite easy to understand how a delivery driver develops low back pain over time, or after working an extensive holiday season with lots of overtime. There is no specific event involved, but the injury is clearly work related. More esoteric cases involve an injured worker who’s exposed to asbestos, for example, at the Kaiser shipyards north of Oakland, because the injury appears some 20 to 25 years after his exposure.
Labor code section 5500.5 governs cumulative traumas. The law says that the person or entity that employed the applicant during the last year of his exposure for a cumulative trauma claim is responsible for the benefits. So naturally, with the a delivery driver there’s not a problem because there’s only one employer. However, in an asbestos case, there might be multiple employers over the 20 years after exposure. Each employer must be scrutinized for possible exposure, so the litigants typically all get their own qualified medical evaluators to try and determine when the applicant was actually exposed to the asbestos that lead to injury. Additionally, because the date of injury is 20 years past the procedure for discovery is different than a newer case.
In an asbestos case each insurance carrier can obtain their own qualified medical examiner who provides insight into the cause of injury and the date of exposure. Under Labor Code Section 5412 the date of a cumulative drama is when the applicant knew or should have known that the problems is work related. Obviously this can lead to issues if the applicant doesn’t even know that he’s sick It takes quite some time for asbestos to manifest. During that time the applicant lead a perfectly normal life. Then one day he goes to the doctor and remembers he worked at the Kaiser ship yards a long ago when the doctor prompts him. Now there is a notice of an injury and physical indication of injury, so the date of injury per LC 5412 is the date of the medical exam. However, the responsible employer is years removed, so the last insurance carrier files a petition for joinder of an earlier employer. Often settlement only comes when all the parties reach a global settlement, something unnecessary for the delivery driver.
Some of the most common cumulative trauma injuries are hypertension high blood pressure, carpal tunnel syndrome, cubital tunnel syndrome and of course shoulder problems, for example from carrying a large purse or backpack.
The interplay between a cumulative trauma and an underlying medical conditions create unique considerations. For example, a diabetic who has circulatory problems in his lower legs and feet develops a blister on his foot from new work boots he was required to buy for his employment as a union laborer. However because there is no feeling in his feet, he does not know there is a blister. Over time the blister becomes infected and due to poor circulation the toe must be amputated. While the employer obviously feels the law is unfair because the injury would not have occurred had the applicant not had diabetes, the employer is nevertheless liable and must provide workers compensation benefits. As I have noted in several posts, California workers compensation is not perfect, but strives to provide substantial justice.
If you believe you have a work related injury, speak to a professional, especially if you are claiming a cumulative trauma.
