The “Multi-Tentacled Monster:” Repetitive Stress Claims

Episode Notes

Transcript

Speaker 1:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts, Judd and Alan Pierce.

Alan Pierce:

Hello everyone. Thank you again for tuning into Workers Comp Matters with me, Alan Pierce with the law firm of Pierce, Pierce and Napolitano in Salem. We’re delighted to bring you another session of our Workers’ Compensation podcast and today’s guest is attorney Ned Barrett. He is the managing attorney for the law offices of Martin b Schneider, coincidentally also here in Salem, Massachusetts. Ned is a very well-known defense attorney handling workers’ compensation cases in Massachusetts for a variety of insurers, TPAs or third party administrators and self-insured employers. He has 25 years of workers’ Comp experience. He did a little bit of claimant and plaintiff work early in his career. He spent a fair amount of time as in-house Counsel for the Travelers Insurance Company. That’s where I met Ned several years ago. Found him to be an engaging and very proficient practitioner in the field of workers’ Comp. And for a number of years now, he has taken an active role in the very well-known defense firm of Martin b Schneider Law Firm here in Salem, where they do primarily, as I mentioned, defense work, but the occasional injured worker case as well. So Ned, welcome to Workers’ Comp Matters. We are going to discuss a topic we haven’t done, if ever, repetitive stress injuries, cumulative trauma injury. So Ned, with that, welcome to our show.

Ned Barrett:

Thank you, Alan. Happy to be here. Happy to have this conversation with you. Yeah,

Alan Pierce:

So let’s get right into it. Workers’ compensation is designed to provide benefits for people who suffer an injury at work. So let’s start with a historical basis of the concept of an injury at work and how that has broadened and developed in the perhaps one century now of our experience

Ned Barrett:

That makes my 25 years of experience seem like nothing spanning back over a hundred years here in Massachusetts.

Alan Pierce:

So how do we get to the concept of compensating repetitive stress injuries or cumulative trauma injury?

Ned Barrett:

It’s really interesting when you look back into the history of these types of claims, the early history of Massachusetts, up till about the 1950s, a lot of the case law wouldn’t have recognized cumulative trauma or repetitive stress injury or even for that matter, a mental injury in the Commonwealth of Massachusetts

Alan Pierce:

Or for the rest of the country for that matter. But yeah, go

Ned Barrett:

Ahead. Is that right? It was slow to evolve throughout the country. Absolutely. So it took a few relatively landmark decisions in the fifties and through the seventies to really hone in on this aspect of someone sustaining an injury at work that isn’t really linked back to any single event. Part of the concept really derived out of a mental injury, this idea of having been exposed to really difficult work environment and the stressors associated with that really kind of opened the legal system’s eyes to the idea of cumulative trauma as well as the legislature’s eyes. And it evolved from there. There’s an interesting case in Massachusetts Pell’s case that really started to open the door to when we get now into the 1970s, a very interesting case, Swarovski’s case really kind of set the groundwork, at least in Massachusetts for how we would define and litigate cumulative trauma claims for the next 50 years following that decision.

Alan Pierce:

Yeah, so let’s maybe narrow in on what is a repetitive stress or a cumulative trauma claim. I think we’re using those terms interchangeably, although stress can be in this context, physical stress, and of course cumulative trauma would be a traumatic injury, but that accumulates over time. So I guess the answer to that question is sort of in the title, but give us a real world example of what would be a cumulative trauma injury as opposed to a frank injury.

Ned Barrett:

Sure. And I think we do kind of look at them in two different categories. Cumulative trauma injury is going to be, for example, the Mason who spends 25 or 30 years laying bricks and is on his or her knees for that 6, 7, 8 hours a day, heavy lifting, pinching, bending, stooping, and doing that over and over again really through rigorous, rigorous work. You may see it in, there’s an interesting case in Massachusetts involving a mechanic who has to get under cars, who has to wrestle with tires and wheels pulling them off of vehicles. And so there may not be that one incident where boom, I just blew my Achilles tendon. But it may be over the course of 10 years where you start to see some changes, what we might call degenerative changes. But the question becomes, did those changes arise because of the nature of the employment?

So I usually look at those as the cumulative trauma cases and then we have ones that are more categorized in the repetitive strain, more an ergonomic type claim. The carpal tunnel cases, someone’s typing seven or eight hours a day or you have a lab technician, and I had this case recently who is popping the tabs off of pipettes and test tubes six or seven hours a day with their dominant thumb and end up with a joint injury in their thumb. So we see these ones that accumulate over time through the regular course of employment. It might be multiple tasks or sometimes we see it in the more traditional repetitive strain as I said.

Alan Pierce:

So as a defense attorney or even a claims department of an insurance carrier, when a claim comes in for a date of injury, which is usually required to identify a date of injury and there is no single date of injury, first of all, how are those claims identified? How are they filed if there was no single date of injury? And secondly, what are the particular challenges for the person investigating the claim, whether it’s the claims department or yourself advising the claims department in order to successfully investigate and if necessary, defend such a claim?

Ned Barrett:

Yeah, that’s a great question because those claims come in often and most claims adjusters hone right in on the date of injury and they’ll be very quickly to say, well, nothing happened to this individual on that date. And oftentimes they have to take a wider angle view of the claim and investigate it a little bit further to see what exactly is being claimed. And so when you have a claim that comes in and it’s alleging a series of events that has caused this disability or need for treatment, you really need to, the first step is really reaching out and touching base with the employer and finding out exactly what the job duties were for this individual over their employment, finding out whether or not there were complaints of any pain or injury over time. And really drilling down from there to get very specific information regarding the employment.

And this can be important on a number of different levels. Certainly if you’re going to defend the claim, you’re thinking ahead to what type of evidence you’re going to present to a fact finder, and you’re also gathering evidence as an insurer to prepare your IME. Often insurers will send an injured claim out for an exam with an IME and if you don’t drill down and get past that initial claim to date of injury, some IME doctors will look at it and will reach the conclusion there was no industrial injury because nothing happened to this person on that claim to date, frankly that IME is not going to be very helpful to you in court as a defense attorney because that’s not the theory of the case. So it’s important to put together a good timeline for your expert, provide them with the facts that they need to make a reason opinion as to whether or not the activities involved with the injured worker, the claimant’s employment contributed to and caused the employment. So a lot of investigation needs to be done into these types of claims

Alan Pierce:

And I know that when you file a claim in our jurisdiction, the forms don’t lend themselves very easily to this. And I’m not sure how other jurisdictions treat this, but our claim form, which everything now is filed online, but it used to be a paper form, it basically has a block date of injury. Now that block is important for a lot of obvious reasons. You need to know the, that the accident happened, it’s important for insurance coverage, which we’ll get into in a moment with these types of claims. But we don’t have a setting for repetitive stress. So what our office does, and I would gather most offices do, they will put down the last day of work, let’s say it was March 21st, 2024, and then when they say description of injury, because usually you have to tell what happened. We say this is a repetitive stress or cumulative trauma injury on various states of work, each and every very state of work up to and including the last day of work.

So that it’s apparent that we are telling the industrial board and the insurance company, we are not claiming that something happened on that day. We are claiming that something happened every day or every day the person performed that. So before we launch into the difficulties from my perspective representing injured workers and your perspective in defending those claims, let’s take a quick break and then we’ll get back to attorney Ned Barrett as we flesh this out a little bit more. We’ll be right back. Okay. Welcome back to Workers’ Comp matters, Ned Barrett talking about repetitive stress, cumulative trauma injuries. Ned, we’re talking about the actual mechanics of filing these claims, but let’s take a quick sort of detour down to a side street here. The body, since we’re born until the day we die, we grow and then our conditions change and degenerate. So we have anybody that reaches adulthood is now beginning the process of degenerative changes in their bodies, the musculoskeletal system. We get arthritis, we get other age related components, and that introduces us to a concept known as ordinary bodily wear and tear. How do you distinguish and how do our systems distinguish the ordinary expected breakdown of the body over time in a wear and tear as opposed to the effects of work on that inevitable process? And where does workers’ Comp begin and where does workers’ Comp not apply?

Ned Barrett:

It’s a really big question. So our Supreme Judicial court, the SJC in Massachusetts tried to address this a little bit in a case known as Zakys case, which in the nomenclature of Massachusetts, once a case gets outside of the Department of Industrial Accidents and makes its way through the state appeals courts, really we identify it by the last name of the claimant. So Mr. Zaki, this is Zakys case. There’s an interesting quote in that case from the SJC and they say that the line between a compensable injury and mere wear and tear is a delicate one. Nevertheless, the distinction is necessary to preserve the basic characteristics of the act. And one of the basic characteristics that the court is trying to preserve is the fact that Workers’ Compensation Act in Massachusetts is not intended to be a general scheme of health insurance. They’re trying to balance that against exactly what you just said there, Alan is that people are changing over time.

And how does the Department of Industrial Accidents, how does the Workers’ Comp system compensate someone when work has caused or contributed to that? The Supreme Judicial Court in Swarovski’s case, tried to come up with a little test. We know now that in order for something to be an injury, a claimed injury to be compensable, the harm must arise either from a specific event, okay, that’s not here, or a series of incidents at work. And that’s what really has opened the door for the cumulative trauma claim. And we also know that it has to be from an identifiable condition that is not common and necessary to all or great many occupations. And again, this circles back to what we opened with Alan is very fact specific. And really as a claimant’s attorney, I would think that you really need to dig deep to make sure that you are meeting these criteria. Whereas on the defense side, as I noted earlier, it’s going to take a lot of investigation and working closely with the employer to really drill down and identify exactly what are or are not the conditions of employment. And is that a regular everyday occurrence? Is this a common movement done frequently, both inside of work and outside of work?

Alan Pierce:

Let’s get into very briefly the facts of poor Mr. Swarovski’s case. Unfortunately for Mr. Zaki, he did not recover workers’ compensation benefits because the industrial board and or the SJC decided that what was disabling him and there was no question he was disabled and that he had a condition was as a result of ordinary bodily wear and tear. So tell us the underlying facts so that we can put this in context.

Ned Barrett:

Didn’t you try that case Alan? This is 1972. This is well before my time.

Alan Pierce:

No, I was in the business, but no, no, I didn’t.

Ned Barrett:

So ultimately the underlying claim with Mr. Roski and he had a past medical history, he had prior Workers’ Comp injuries, and really the question was whether or not he had a new injury

Alan Pierce:

And it was to his feet, was it not?

Ned Barrett:

It was. And the allegation was that he was stuck on his feet on concrete floors walking and moving around about throughout the course of his day, eight hours a day, and that this condition really caused a new injury as opposed to him having suffered a recurrence of some previous injury. So it was really a question of if someone’s going to pay for this, who’s going to pay for it? And ultimately, the Supreme Judicial Court, Massachusetts felt, you know what? Walking and standing on a level concrete floor, even though it might be eight hours a day every day is just not enough to meet the definition. They found it was just too common to too many occupations. And really as a result, Mr. Zaki was out with respect to that claim.

Alan Pierce:

The distinction was not only limited to common to most occupations, but more importantly I think the distinction that hurt the claimant’s position in this case, it was common to everyday life that if you are living a life and you are walking, then you can’t blame the employment for one third of the hours of a day that you happen to be at work. I think in retrospect, that was the first case I think the courts ever addressed wear and tear. And I think it caught the workers’ Comp bar a bit by surprise because you look at this case, you think, how could Zaki lose this case? He’s on a concrete floor subjecting his feet every day to this. I think if the attorney presenting this case had hindsight, perhaps he would have brought in the medical evidence and the factual evidence about the difference between concrete floors and wooden floors, carpeted floors, grass, things that we walk on to differentiate the particularities of. And then I would do the math eight hours a day, five days a week, et cetera, et cetera. And you can get around, or at least my theory would be to get around the wear and tear defense by honing in on the particularities of the employment.

Ned Barrett:

And I think you’re right, Alan too, because a lot of the phrase hard work and rigorous employment activities and phrases like that are littered throughout that Swarovski decision. And I think that they just regarded as standing and walking as not rigorous or manual labor. And I think there was a predisposition in the court’s mind to think of just standing and walking as not meeting that. And it would’ve taken some mental gymnastics by the claimant’s attorney to really get them. There might’ve been possible. But it seems that from looking at the decision there, the court’s frame of mind was standing and walking level surface. It’s not going to meet the definition.

Alan Pierce:

Exactly. And we see Swarovski’s case cited as a defense many times when we file a claim. So you mentioned carpal tunnel syndrome, and that was probably the first type of diagnosed, acclaimed workers’ Comp injury that was classically repetitive. And of course computers are ubiquitous. We are using them every day at work and not at work. Tell us about the particularities of, and any case you may have had where somebody was doing these activities in a social personal setting as well as a work setting, and where do you draw the line?

Ned Barrett:

Sure. And I think it’s something that we as employers, Alan think about all the time with our staff. We’re in an industry where there’s a lot of typing and ergonomics is a big industry. It’s a big business. And I think as I had said earlier in our conversation, employers have kind of caught onto that and they have looked for ways to modify people’s employment, whether it’s in an office or it’s on an assembly line, and they’re rotating folks through different tasks and trying to minimize that type of buildup of wear and tear. And there’s been a lot of studies on that. So for me, when I’m defending a case like that, it’s very important to find out exactly what the claimant would do on a day-to-day basis, and what were they doing on the last day that they were working, what was really caused them to get out of work, to be disabled.

Those are really important factual determinations and I think they can really make or break a case. Recently, as I said, I had a claim involving a lab worker who was alleging that over 15 years he was opening test tubes and popping pipettes to put test samples into test tubes and was constantly using his thumb. Well, we dug a little deeper on that case and we found out that he did that approximately once an hour, every hour. So when you add it up, a claim can be made. Wow. He was doing this eight hours a day and he did it 150 days a year and he did it for 15 years. And that sounds daunting, but when we brought that information to a vocational expert and to a medical expert and said, really, does this seem to meet the definition of a repetitive type activity to you? The conclusions by both experts for the defense where, well, no, there’s enough going on in between each time the individual has to use his or her thumb, his thumb, and it’s not going to meet the definition. So from a defense perspective, that’s how we were able to push back from what you were talking about earlier where you kind of try to quantify it from a claimant’s perspective.

Alan Pierce:

Alright, we’re going to take another quick break and we will come back to conclude our conversation on this fascinating topic. We’ll be right back. Okay, we’re back with attorney ned barrett net. I want to shift the conversation a little bit to, again, going back to the date of injury. First of all, I think that’s essential for insurance coverage. As you know, insurance policies can be written for one year or they can be written for three year period, et cetera, so that the last day of work, if that is the date of injury, there is an insurance policy tied to that date. But we know policies are written, renewed, canceled, new policies are written. So what happens with somebody who’s been using their thumb for pipettes for 15 years and for 14 years and 11 months, the employer was insured by Travelers where you used to work. And for the last couple of weeks a new policy with Hardball Mutual and Union called in to defend them. Who gets stuck with that claim if it is considered to be compensable? Probably 99.9% of the damage was done under a traveler’s watch.

Ned Barrett:

Right? And two things will happen. Sometimes we might see a claimant’s attorney file a cumulative trauma claim against each previous insurer straight through the last date of employment. So there have been cases I’ve been involved with, there might be 10 insurers. In your example, there might be two, the Liberty and the hardball insurers. And in that situation in Massachusetts and all these situations where there are potentially multiple dates of injury because of the cumulative nature of the trauma, unfortunately in Massachusetts we have no apportionment of the risk, no apportionment of the loss, and instead the courts have crafted the so-called successive insurer rule, which states that the insurer on the risk of the last date of injurious exposure, so the last day that this person suffered any type of injury, that insurer is going to be liable for the entire loss. It doesn’t matter if it’s a one day employee versus a thousand days with another insurer. We see that with cumulative trauma cases. We see that with exposure cases and asbestos cases, infectious disease cases as well. And in fact, there are cases in Massachusetts where the court has looked at individuals who are concurrently employed and both jobs require similar repetitive movements. And they have literally looked to see the last shift that that injured worker worked and which employer it was for, and that insurer could be found liable for the entire loss.

Alan Pierce:

And as you can see, the burden of the loss may fall unfairly on an employer whose coverage for the risk is Dhir minimis. But there’s hardly, we think workers’ Comp is complicated enough in terms of Litigation. Once you have to get down to parsing out how much this particular trauma rests with travelers, Liberty mutual, hardball or nobody, it becomes an almost impossible task. So the employer that might unfairly get hit in one case might be off the hook on the other case for the other claimant. The other thing before we finish, I want to talk about, and this could probably be an entire show and of itself, is many states are moving towards moving away from aggravation of a preexisting condition. So somebody with a predisposition for caral tunnel or some underlying arthritis to the knees, and then there’s repetitive stress. We are faced with now a major cause or the major cause has to be work-related. And it could very well be, let’s say, degenerative arthritis cases, which may come from kneeling and stooping and bending as a plumber for 40 years as well as age-related arthritis. How do we distinguish between, or from a strategy standpoint, how do you use the cumulative trauma claim to mitigate against the major cause standard? In other words, change the underlying condition from a degenerative age-related condition to a work-related condition. What’s your experience shown there?

Ned Barrett:

Yeah, so that can be a challenging claim to defend against because you end up defending it on multiple fronts. So from a defense perspective, we may be very interested in examining prior medical records to determine if there are any distinct claims of injury outside of employment, or maybe there’s a specific date of injury with a different insurer and we can point the finger there. But that is an intersection between preexisting degenerative conditions and a specific date of injury. And as you know, Alan in our jurisdiction, we may try to shift the burden and raise the burden on causation from a straight causation standard to a major cause standard. But really that’s just a causation shift. It may not necessarily be a bar to compensability if you as a claimant’s attorney are able to turn around and produce credible medical evidence that the industrial injury continues to be a major cause.

And that could be the cumulative trauma, it could be the resulting surgery with a specific date of injury. So it becomes kind of this multi tentacle monster for both of us where we’re digging into the past and finding anything we can with respect to this individual’s medical, past medical history. We’re looking at the terms and conditions of employment and we’re examining what as of today is a cause of the injury. It may be that it needs to be a major cause. So it’s a multifaceted turns what might seem like a straightforward case into a complicated multifaceted one.

Alan Pierce:

Yeah, and as you alluded to at the beginning, each and every one of these cases is very much fact dependent. You have to gather your facts in a way that advances either your claim or defense. Just to give you an example, I had a client who his knees just gave out and he was aging and his job was to basically climb stairs, a lot of stairs, and it was relatively easy to find out how many steps are in a flight and how many flights he would do a day. And you do the multiplication on the multiplication so that when we were either presenting our medical evidence of cross-examining the defense, IME, we weren’t talking about somebody who climbed stairs because everybody climbed stairs in their life. We’re talking about 10,000 steps up and 10,000 steps back with somebody with a body mass index of this and a weight and height of that. And by the time we were through this was more than just climbing stairs. These were mini traumas to those knees, thousands and thousands and thousands of times a month, a year, a decade. Then again, maybe 20 or 30 years ago, those claims were not looked upon as favorably and maybe they were classified as wear and tear. Any closing thoughts, Ned, from your perspective, having defended these claims for low these many years?

Ned Barrett:

Well, I think it just goes to show you open a topic like cumulative trauma and it’s a little bit like a clown car. They just keep pouring out is that we can go down to preexisting conditions and we can go down to causation standards. Your last example made me think, wow, is this really going to open the floodgates on second injury fund potentially? So we have that in our jurisdiction. So this topic alone can touch on almost every aspect of our entire act here in Massachusetts and I suspect throughout the country.

Alan Pierce:

Ned, if people want more information about you, your firm or this particular topic, how can I find you?

Ned Barrett:

Well, my firm is a little bit like the A team Alan. We don’t have a website. Our business model is stealth. If anyone would ever like to reach me and to discuss any matters of workers’ compensation, I would invite them to send me an email at n barrett N-B-A-R-R-E [email protected] and I’d be happy to engage further.

Alan Pierce:

Alright, well thank you for being here. Thank you for your years of expertise in bringing a small portion of that to our audience. It’s been a delight to talk to you. It’s always been a delight to know you and litigate cases against you. Good, bad or indifferent, man, the bad ones. We hopefully settle the good ones. We chapter what’s good for me is usually not good for you and vice versa. So I want to thank you for being a guest and to our audience, thank you for listening and go out and make it a day that matters. Thanks. Bye-Bye.

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