Christine Baker, the new California Director of Industrial Relations (DIR), has hit the ground running. She recently announced a series of statewide fact-finding meetings with the intent of hearing from all sides of the workers' compensation community. I was able to attend the Los Angeles session and listened to severely injured workers relate how poorly the system has provided for them.
There were also comments by insurance company claims professionals relating stories about how convoluted the system really is. We heard from healthcare professionals on the abuses they are seeing under the Utilization Review system which it seems has taken on a life of its own. And of course we heard from employers on everything from rising costs due to the lack of control over the medical delivery system to the outright fraud being seen when an employee is terminated for valid reasons and an industrious attorney files a cumulative trauma claim. It was to this issue I directed my remarks, and I thought it appropriate to share them with you in this article.
It is time to revisit and re-evaluate the value of this statutory condition (L/C 3208.1), which is rapidly becoming yet another undue burden on both employers as well as the workers' compensation system. Cumulative trauma claims are currently being used, and in many instances abused by disgruntled employees who are no longer on the payroll. By filing post-termination cumulative trauma claims, employees are circumventing the legitimate needs of businesses to make personnel decisions based on the employer's current financial situation and needs.
One need only look at the increase in cumulative trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that "work" has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.
I would not argue that there are not real and viable events that can lead to a compensable situation. Asbestosis would be the best example of a condition that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.
However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?
As a starting point for this discussion, when someone is hired for a job — whether it is brain or brawn — the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while they do their job. Employers hire the entire package as he/she finds them and is responsible for same.
I would then point out that whether or not we like it, all of us are "wearing-out" as the years pass. The question then is, "Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?" I argue that they should not.
I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own "wearing out."
- Take cumulative trauma claims out of the Labor Code and allow employees to make cumulative trauma claims as they would a specific injury. This will place the burden of proof on the employee to show, just as they do with a specific injury, how this trauma is more than part of the "wearing out/aging" process.
- Change the definition of a cumulative trauma injury to more closely mirror that of psych/stress claims. In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused additional disability which should be covered.
- Since the employer is hiring the entire package, we should set up a "depletion" allowance funded by the employee. There should be a percentage taken from each dollar earned which will be placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.
Regardless of which of these you feel would be the best solution to a growing problem, the real point is that this is a further drain on employers, and therefore the California economy, and needs to be addressed. I only hope that all of that which was shared will not have fallen on deaf ears. Only time will tell, and I promise to keep you informed as we see positive changes to the system to make it fair for everyone.
