Workers Comp Zone


On January 7, 2016 the WCIRB unveiled a report analyzing changes in indemnity claim frequency (see link below).

The report will continue to stoke the fires of those who are concerned about cumulative trauma claims in California. Of course, the classic cumulative trauma claim would be that of a construction worker or fireman who does heavy labor for years, resulting in the development of symptoms to various body parts that may manifest before or after the employment has ended.

The WCIRB report tends to discount the effect of these claims insofar as the report concludes that “the frequency of cumulative injury claims has contributed to an increase in total indemnity frequency but has not had a significant impact on changes in average claim severities.”

But the report’s Chart 3 shows that using one measure, cumulative trauma claims increased to 17.9% of indemnity claims in 2014, up from 7.8% in 2005. Those c/t claims that are filed are less likely than in recent years to have a psyche or sleep component.

Part of the increase in c/ts may be explained as a consequence of changes in the apportionment statutes and the Benson decision. Under Benson and the apportionment statute (Labor Code 4663 & 4664), doctors assessing permanent disability must address what portion of the disability is directly caused by the injury and what approximate percentage of the permanent disability was caused by other factors. Oftentimes QME doctors will find that a component of the disability was preexisting, but fail to address whether cumulative trauma was a component of that preexisting disability. For a hypothetical example, a fireman injured in a fall might find that 3/4 of his disability is assigned to a fall at work but 1/4 to underlying degeneration, yet the examiner may not address whether the underlying degeneration is partly due to the wear and tear of years as a fireman.

So it is this that drives some of the increased  filing of cumulative trauma claims.

But it’s likely that the increase  in the proportion of c/t filings is due to multiple factors.

The WCIRB report notes that “recent changes in indemnity claim frequency have affected industries differently”, with claim frequency rises in more hazardous jobs such as agriculture, construction and entertainment. And the report notes that “as the economy recovers, newer workers entering the system may be more likely to be injured on the job than more experienced workers.” Using DWC WCIS  accident year data,  the WCIRB’s Chart 8 notes that in 2015, 50% or workers injured had a tenure of 0 to 2 years, an increase of almost 10 percentage points from 2010. Not all of those claims are cumulative trauma claims, however. And it is counterintuitive to think that more c/ts would be filed in cases where workers were on a job for a short time. That can happen, but would not be the usual scenario.

In any event, as the California economy improved following the Great Recession, it appears that many new workers were being injured. Perhaps many of those workers were inexperienced or marginal workers to begin with. What racial and ethnic mix there is of these folks isn’t clear. Nor is it clear what language barriers they may have that handicap their understanding of safe working standards and practices.

What seems to be getting the most attention in the WCIRB report, however, is that the metro Los Angeles/Orange County/Riverside/Ventura/San Bernardino area accounts for the majority of increased claim frequency in California. This was a big focus of the WCIRB’s January 14 webinar that presented finings from its research (see webinar link below).

The take-away is that claims are increasing in the Southland and decreasing in other parts of the state.

This was the focus of a recent legislative informational hearing, and it does not appear that the WCIRB study gives any definitive answer as to why the claims in Southern California continue to spiral in a different pattern.

Interestingly, however, a article today notes that Los Angeles county employees filed fewer claims in 2015 although the costs of the claims that were filed did increase. So not all LA area employers are experiencing claims increases.

But for those that are, possible factors (some of which were discussed in the oversight hearing) may include the mix of heavy and hazardous industries there, the large number of monolingual Spanish speakers and their role in high hazard jobs, claims handling practices, the role of doctors and ancillary providers in driving claims filing, and differences in attorney involvement. It does not seem to make sense that the apportionment/Benson changes would drive a higher level of c/t filing in the Southland than in other parts of the state.

And no data I’ve seen has yet offered definitive analysis of what factors are primary in the divergence from North and South claims, particularly for c/t claims. There has been ongoing concern about the low ratio of Cal-OSHA inspectors to the number of workers. Whether this is a factor in regional claims counts is unknown.

But what seems clear is that the focus on regional differences is not going to go away. I suspect there will continue to be careful scrutiny to see if extraneous factors are driving claims practices in the Southland.

There tends to be more workers’  comp advertising in Southern California than elsewhere in the state, so is this driving higher numbers of workers to file claims, including c/ts? Do “signing services” play a role in this, where third party companies go out and meet with prospective clients and sign them up for an attorney? Are some ads and services  stimulating claims  and are those fueled by medical providers or other non-attorney comp system stakeholder groups? Are some applicant firms increasing their filing of c/t claims and if so how is that benefiting them and their clients? Are medical-legal providers and lab & radiological test facilities involved? Do some firms routinely file a cumulative claim in addition to a specific injury claim in order to get a claim denial so that the worker can try to treat on a lien outside the MPN?

I don’t doubt that there may be anecdotal evidence of some of these things, but how significant any of them are (individually or collectively) isn’t clear.

Judging from various comments to recent articles on the WCIRB study in authored by Greg Jones and Elaine Goodman, there appears to be no lack of opinions in the comp community on the causes of regional differences.

I’d be concerned with throwing the baby out with the bathwater.

If there are legitimate reasons for statewide geographic claims differences, fine. But if not, let’s get to the bottom of it so that legitimate claims by hard working folks are not tarnished or circumscribed.

Here is the link to the WCIRB website where you can find the powerpoint of the webinar:

And here is the text of the study:

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Julius Young