Annette Malpica, Vice President, Director of Claims & Legal Counsel, Lovell Safety Management Co., LLC
In recent years, employers have seen a rise in the number of claims for work-related occupational repetitive stress injuries (“RSI”). Occupational diseases, unlike accidents, which occur suddenly and unexpectedly, usually develop over an extended period. The increases in occupational RSI claims were most notable after the 2007 Workers’ Compensation Reform legislation set in motion increases in the weekly rate of compensation, from $400 in January 2007 to $1063 a week as of July 1, 2021. It is not uncommon for RSI claims to be filed by employees who claimed no lost time from employment, continue to work without any limitation, and require minimal medical treatment. The cost of RSI claims ballooned post reform. NYCIRB’s State of the System 2021 Report found that permanent partial disability (“PPD”) claims accounted for over 73.4% of losses, even though they represented only 18.6% of the claims filed in 2021.
The RSI case of JT is not unusual. JT, a laborer for a construction company, filed an occupational disease claim in 2019, after being terminated from employment. He alleged RSI to both elbows, hands, and bilateral carpal tunnel due to jackhammering and shoveling. According to his doctor, the injuries occurred within two months of the claimant’s employment. The claimant never received any treatment, surgery or lost any days from work during his employment since the diagnosis of occupational injuries occurred post-termination. He is seeking $145,000 in a schedule award. The Workers’ Compensation Board (“WCB”) must determine whether the claimant’s conditions meet the legal requirements for an occupational disease entitling him to a schedule loss of use award (“SLU”).
Repetitive Strain Injuries as Occupational Disease
Workers’ Compensation Law § 2(15) defines an “occupational disease” as “a disease resulting from the nature of employment and contracted therein.” Occupational diseases that meet this legal standard are compensable under the WCL. In Goldberg v. 954 Marcy Corp., 276 N.Y. 313 (1938), New York’s highest court defined an occupational disease as:
[c]onditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguish it from the usual run of occupations…
Occupational RSI are often diagnosed as: carpal tunnel, tendinitis, bursitis, or cubital tunnel syndromes. Symptoms range from pain or tenderness, stiffness, or joint restriction, tingling or numbness, cramping and swelling of the extremity.
Claimants who had established RSI claims may be entitled to permanent partial disability or, SLU awards. The skyrocketing cost of SLU awards was an area of contention that the 2017 Reform legislation attempted to address by requiring updated Impairment Guidelines.
The 2017 Reform Legislation and Skyrocketing Cost of SLU
The 2017 Reforms directed the WCB to create new SLU impairment guidelines (the prior guidelines were issued in 1996) to reflect “advances in modern medicine that enhance healing and result in better outcomes.” Unfortunately, the 2017 Guidelines represent a missed opportunity to modernize the system. The new guidelines produced SLU outcomes comparable to the 1996 Guidelines with some clarification regarding ranges of motion and other special considerations. The Guidelines, however, lacked objective measurements, were subject to manipulation and failed to adequately reflect medical advancement in treatments. Had such factors been considered, they would have often resulted in findings of minimal or no permanent loss to a claimant’s earning capacity.
As for JT, whether he was caught with his hands in the till or ultimately awarded a SLU based on his disability, one thing is for certain – the ever-skyrocketing costs of occupational RSI.
Annette Malpica R.N., Esq, is VP, Director of Claims & Legal Counsel at Lovell Safety Management Co., LLC. For more information on workers’ compensation, contact Lovell at 1-800-5-LOVELL or visit online www.Lovellsafety.com.