Bar Journal - September 1, 2000
APPEAL OF WAUSAU INSURANCE CO.: Handling Cumulative Trauma Injuries in the Workers’ Compensation System
By: Ian Bourgoine
Cumulative trauma injuries have been a source of frustration for employees, employers, and insurers since before the term “cumulative trauma” came into existence. Unfortunately for an increasing number of states, the
recognition of cumulative trauma injuries in the workplace has only proved more confusing for all involved.
This article is intended to analyze and explain the New Hampshire Supreme Court’s handling of cumulative trauma injuries and the apparent clash between the court’s recent holding in Appeal of Wausau Insurance Co. and the underlying policies upon which the New Hampshire workers’ compensation system was created. As we will see, the court’s struggle to balance what it perceives as the legislature’s intent with the medical reality of cumulative trauma injuries may not offer the best results for employees, employers, or insurance carriers in the New Hampshire workers’ compensation system.
I. CUMULATIVE TRAUMA INJURIES DEFINED
Simply put, a cumulative trauma injury is an injury where there is no one single, identifiable incident causing the injury.1 Usually, cumulative trauma injuries are sustained by workers whose daily tasks involve repetitious motion. This repetition over an extended period of time can cause the worker to suffer a gradual increase in pain and symptoms, until eventually the worker can no longer continue performing the necessary movements and exertions to continue his or her job.
II. APPEAL OF WAUSAU INS. CO.
Wausau Insurance Companies served as Littleton Lumber Company’s workers’ compensation insurance carrier from October 1, 1991 through September 30, 1993.2 Liberty Mutual Insurance Company took over as the company’s workers’ compensation insurance carrier on October 1, 1993.
Hudson, Jr. worked as a loader operator for Littleton Lumber, primarily responsible for operating a forklift on the company’s premises. This required him to steer the forklift in a repetitive motion for most of his work day. Mr. Hudson began experiencing a noticeable soreness in his shoulder that gradually worsened into a constant pain in his left shoulder and arm. In December 1992, Mr. Hudson finally sought medical treatment for his shoulder
pain. From 1992 through October 1994, Mr. Hudson’s medical treatment was covered by his health insurance carrier because his doctor did not discover that his injury was, in fact, work related.
In April 1994, Mr. Hudson’s doctor concluded that his shoulder condition was worsening and that the injury was work related. Consequently, Littleton Lumber’s First Report of Injury was sent to the Department of Labor on April 21, 1994, giving no date of injury and naming Liberty Mutual as the carrier. Liberty Mutual denied the claim stating that Mr. Hudson’s claim was the responsibility of the previous insurance carrier, Wausau Insurance Companies. A second First Report of Injury was then issued naming Wausau as the insurance carrier on
the risk and listing the date of injury as December 15, 1992, the date when Mr. Hudson initially sought medical treatment.
In 1994, Mr. Hudson’s doctors agreed that surgery would be necessary to repair his shoulder. Surgery was performed on October 4, 1994, and Mr. Hudson was out of work for a full month recuperating from his surgery.
Shortly after Mr. Hudson returned to operating the forklift at Littleton Lumber, his doctors realized his shoulder had not healed properly. Mr. Hudson then
underwent two additional surgeries, requiring him to miss approximately two more months of work.
In May 1995, Wausau Insurance requested a hearing at the Department of Labor to determine which of the two insurance carriers was responsible for covering Mr. Hudson’s benefits from October 4, 1994 forward. The Hearings Officer and the New Hampshire Compensation Appeals Board (CAB) each found that Mr. Hudson’s date of injury was December 15, 1992, the date he initially sought medical treatment for his shoulder pain. Since Wausau Insurance was Littleton Lumber’s insurance carrier at that time, the Board determined that Wausau Insurance Companies should be responsible for Mr. Hudson’s entire claim.
The CAB accepted Liberty Mutual’s invitation to apply the test set forth in Appeal of Commercial Union Insurance Company.3 Under this test, if the worker’s injury is a worsening or “recurrence” of the original injury, the insurance carrier at the time of the original injury remains liable.4 However, if the worker sustains a second accident that can be considered a separate, “new” cause or aggravation of the injury, the second insurance carrier is responsible for proving benefits to the injured worker.5 The CAB was not without justification when it applied the Commercial Union test. Indeed, the New Hampshire Supreme Court applied a similar analysis in Town of Hudson v. Wynott in 1986.6
III. RECURRING INJURY VERSUS CUMULATIVE TRAUMA INJURY
In Town of Hudson v. Wynott, the claimant, Lawrence Wynott, Jr., was injured in June 1976 when he closed the tailgate of a dump truck while employed by the Town of Hudson.7 Mr. Wynott was unable return to work due to the pain and underwent surgery on December 5, 1977.8 Mr. Wynott then contracted a postoperative wound infection and underwent a second surgery in January 1978.9 Beginning in 1980, he began physical therapy at the Dartmouth-Hitchcock clinic in Hanover.10 Fireman’s Fund Insurance Company provided disability compensation and medical benefits during this period.11
Mr. Wynott then sought and received a lump sum settlement from his insurance carrier in the amount of $29,000.00.12 The carrier was still responsible, however, for the claimant’s medical benefits.13 Mr. Wynott used the lump sum money to open his own bait shop.14 Between September 1980 and July 1983, the claimant did not seek medical treatment for his back.15
In early July of 1983, Mr. Wynott lifted a bait pail containing a gallon of water.16 A sharp pain radiated up and down his back.17 His doctors performed a laminectomy of two lower vertebrae and foraminoties of two nerve roots, and excised a herniated lumber disk.18 Mr. Wynott filed workers’ compensation claims to recover the medical and hospital expenses from his old insurer for the 1983
surgery and treatment.19 This claim was denied on the grounds that the 1983 injury was not related to the 1976 injury.20
Ultimately, the New Hampshire Supreme Court held that despite the period between 1980 and 1983 in which the claimant did not seek medical treatment, the medical evidence clearly showed that the 1983 injury was a direct and natural result of the 1976 injury.21 The court reasoned:
Once a work-connected character of any injury...has been established, the subsequent progression of that condition remains compensable so long as the
worsening is not shown to have been produced by an independent nonindustrial cause. So long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in
itself would not be unreasonable under the circumstances.22
This reasoning can also be seen in other New Hampshire Supreme Court holdings, such as Rumford Press v. Travelers Ins. Co. and Town of Goffstown v. Morgrage,23 and fits neatly within the workers’ compensation statutory framework which offered insurance carriers certainty in determining their risk
and provided the injured worker and his or her employer with clear rules governing which insurer was responsible for coverage of the worker’s injury. New Hampshire RSA 281-A:46 provides that when a worker suffers an injury that aggravates a preexistent condition, the insurer at the time of the most recent injurious incident is on the risk.24 If, on the other hand, there is simply a worsening of the original injury, RSA 281-A:23 mandates
that the first carrier is responsible for coverage.25 Consequently, in order to determine which insurance carrier is responsible for a particular worker’s injuries, the insurer, and eventually the New Hampshire Supreme Court, would only need to find out whether the injury was an aggravation of a preexisting condition or a worsening of an original injury.
IV. NEW HAMPSHIRE SUPREME COURT: CUMULATIVE TRAUMA INJURIES DISTINGUISHED AND EXPLAINED
When Wausau Insurance Companies appealed the CAB’s decision to use the tests set forth in Wynott and Appeal of Commercial Union, the New Hampshire Supreme Court reversed.26 The court found the worsening of an original injury analysis to be inappropriate for Mr. Hudson’s injuries because he suffered from a cumulative trauma in jury, not a worsening or degeneration of an original, recognizable injury.27
A cumulative trauma injury is the result of repetitive trauma over a period of time, which does not result in a sudden traumatic and recognizable injury that progressively worsens.28 Cumulative trauma causes a slow and gradual degeneration of a worker’s condition to a point where the claimant is finally unable to work. A key factor in cumulative trauma injuries is that there is no one event that can be blamed for the injury.29
The problem with the court’s analysis is not in holding that Mr. Hudson suffered from a cumulative trauma injury, but rather the re-creation of a rule that holds that a worker’s injury is not really an injury until the worker becomes disabled.30 Accordingly, because Mr. Hudson was not prevented from working until his surgery on October 4, 1994, the court recognized the date of his injury as October 4, not the date he felt pain and sought medical treatment.31
The result of the court’s disability rule is that a particular worker’s inability to make the necessary muscular movements and exertions of his job is not compensable unless and until it produces some type of
“disability.”32 The court did point out in Wausau, however, that disability need not result in total inability to work; it can also be found where the worker suffers a loss in earning capacity.33
The court’s rule – that the date of a cumulative trauma injury is the date the claimant is unable to work, rather than when the symptoms appear or when he or she first received medical treatment from a doctor – created some confusion and controversy among attorneys practicing before the Department of Labor, as well as some frustration among the CAB. Indeed, as counsel for Liberty Mutual Insurance pointed out in his brief in Appeal of Wausau Insurance Co., the date of injury for cumulative trauma cases is inconsistent with the entire ameliorative scheme and purpose of workers’ compensation.34
Counsel for Liberty Mutual and other attorneys have repeatedly pointed out that, from its inception, the workers’ compensation system was designed to reduce the delays and inadequate relief that was the natural result of the pre-worker compensation common law tort system. Indeed, the old common law system resulted in many cases of injustice; the tort system resulted in economic waste and needless injury, and could not provide ready and early remedial care to those who most needed it.35
The New Hampshire Supreme Court’s “date of injury” rule for cumulative trauma threatens to have the practical effect of bringing about some of the same ills as the old common law tort system. Practically, the court’s date of injury rule means that a claimant is not entitled to benefits until he or she becomes disabled and is not able to work. Consequently, the worker is left in a position where he or she may feel pain and may seek medical treatment, but is not able to receive workers’ compensation insurance coverage for those costs.
A worker who feels pain in his back, for example, will likely choose to continue working until his or her injury becomes worse and must stop working altogether in order to receive medical coverage and benefits. This is contrary to the purpose of the workers’ compensation scheme which is meant to diminish economic waste and return the worker back to work as soon as possible.36 Furthermore, the court’s date of injury does not offer an incentive for the worker to seek preventative treatment so that he or she never becomes disabled. On the contrary, it provides incentives for the worker to continue working until he or she suffers from some ailment that will result in real economic loss.
V. TRAUMA AHEAD FOR CUMULATIVE TRAUMA ANALYSIS
Just when the dust began settling over the cumulative trauma rule, the New Hampshire Supreme Court heard oral arguments in Appeal of Littleton Stamp & Coin in the winter of 2000. Littleton Stamp provides insight into the future problems that lie ahead for the court’s cumulative trauma “date of injury” rule and analysis following Wausau.
The claimant, Sylvia Wright, became employed at Littleton Stamp & Coin in March of 1991 as a mail sorter.37 In July 1996, Ms. Wright felt a sharp pain in her right shoulder and was diagnosed with right shoulder bursitis.38 When she returned to work, Littleton Stamp & Coin gave her alternative employment as a floater.39 Commercial Union Insurance Company was the insurer from September 1, 1995 through August 31, 1996.40 Liberty Mutual Insurance assumed the risk on September 1, 1996, after which Ms. Wright’s injury progressively worsened.41 She kept working, however, until October 1996, when her doctors increased her restrictions, and she was unable to continue working for Littleton Stamp altogether.42
The Compensation Appeals Board agreed with Ms. Wright’s doctors that she was suffering from a cumulative trauma injury.43 Interestingly, the CAB held that the previous insurance carrier, Commercial Union, was responsible for the workers’ compensation benefits even though the claimant had not suffered a
loss in earning capacity or an inability to work until Liberty Mutual began offering workers’ compensation insurance to Littleton Stamp in October 1996.44
On appeal, the Liberty Mutual Insurance Company argued that, but for the fact that Littleton Stamp & Coin could offer Ms. Wright light duty work, Ms. Wright would have suffered a loss of earning capacity and/or would have been unable to work during the time that Commercial Union was on the risk.45 Liberty Mutual argued that the liability standard enunciated in Briggs and Wausau was grounded on the physical condition of the claimant instead of the work-availability of the employer.46
Liberty Mutual then posed several hypothetical examples to point out where the current cumulative trauma analysis could lead the court. It asked the court what happens when an employer offers Employee A light duty work at his
pre-injury wage, while Employee B is given light duty work in a different department at a lower wage. Has only Employee B suffered a compensable injury?47 An alternative hypothetical posed is when Employee A receives temporary alternative work and does not lose income, while Employee B’s employer does not have alternative work and, consequently, Employee B receives disability benefits. In this situation, is B the only one who has received a compensable injury?48 There is little doubt that the court will face such situations in the years ahead.
In 1999, the New Hampshire Supreme Court reaffirmed its holding that cumulative trauma injuries deserve a unique type of analysis in the workers’ compensation system. When it did so, it held that a cumulative trauma injury does not actually occur until the claimant suffers some form of disability and/or loss of earning capacity.
Unfortunately for people affected by cases decided under this analysis, each week of the year workers in New Hampshire suffer cumulative trauma injuries. As long as these injuries are not recognizable until the worker
becomes disabled, insurance carriers will have to suffer the trauma of being uncertain as to when they are on the risk for injuries that worsen over a period of time. Further, workers will have to endure the trauma of having to work while injured until they can show some type of disability in order to receive coverage. Perhaps it is time for the New Hampshire legislature to address
cumulative trauma injuries in the framework of the present workers’ compensation statutory scheme.
1. See Appeal of Wausau Ins. Co., 143 N.H. 478, 479 (1999).
2. All facts are taken from Appeal of Wausau, 143 N.H. 478 (1999).
3. See Brief for Respondent, Liberty Mutual Insurance Company at 7, Appeal of Wausau Ins. Co., 143 N.H. 478 (1999) (No. 96-439); see also Appeal of Commercial Union Ins. Co., 140 N.H 429 (1995).
5. Brief for Respondent at 3, Appeal of Wausau (No. 96-439).
6. Town of Hudson v. Wynott, 128 N.H. 478, 485 (1986).
7. Id. at 480.
21. Id. at 485.
22. Id. at 481-482 (citing A. Larson, Law of Workmen’s Compensation §13.11(a) (1985)).
23. Rumford Press v. Travelers Ins. Co., 125 N.H. 370 (1984); Town of Goffstown v. Morgrage, 122 N.H. 591 (1982).
24. N.H. REV.STAT.ANN. § 281-A:46 (1988).
25. N.H. REV.STAT.ANN. § 281-A:23 (1988).
26. Appeal of Wausau, 143 N.H. at 480.
28. Id. at 479 (citing Appeal of Briggs, 138 N.H. 623 1994)).
30. Id. at 480 (citing Desgrosiers v. Dionne Bros., 98 N.H. 424, 426 (1953)).
34. Brief of
Respondent, Liberty Mutual Insurance Company at 16, Appeal of Wausau (No. 96-439).
35. See Mulhall v. Nashua Mfg. Co., 80 N.H. 194 (1921).
37. Brief for Petitioner, Commercial Union Insurance Company at 1, Appeal of Littleton Stamp & Coin, No. 98-659 (N.H. filed Oct. 15, 1998).
45. Brief for Respondent, Liberty Mutual Insurance Company at 4, Appeal of Littleton Stamp
& Coin (No. 98-659).
46. Brief for Petitioner at 4, Appeal of Littleton Stamp & Coin (No. 98-659).
47. Brief for Respondent at 15,
Appeal of Littleton Stamp & Coin (No. 98-659).
Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.