WCDefenseCA

Can you feel it, dear readers?  Just around the corner is your humble blogger’s favorite holiday of all – Thanksgiving!  The gentle gobble-gobble of turkeys, the delicious pumpkin pies, the deep, soft sleep enjoyed only by the just except after the Thanksgiving meal, when that slumber is enjoyed by all… it’s wonderful!

Well, before you hop on the literal gravy train let your humble blogger, especially since Chanukah and Christmas are coming up soon, your humble blogger thought he’d share another one of the items on his workers’ compensation wish list.

Since it seems that if we eliminated cumulative traumas in California altogether, roughly half the industry would be without a job, how about something a bit more realistic – CT reform.

The frustrating thing about cumulative traumas is that the standard for a CT is so low, and the deterioration of the human body is so universal, the California CT has become a catch-all.  Is the claim barred by a post-termination defense? That’s fine, just plead it as a CT.  Did applicant not get the QME specialty she wanted?  That’s fine, just plead it as a CT and get a new panel. 

Some applicant attorneys even claim that the companion CT entitles applicant to an additional SJDB voucher, or additional TD for non-overlapping periods.  Absurd, I know, but still allegations to contend with and waste precious defense attorney and WCAB time on.

So how would your humble blogger reform CTs in California, if not eliminating them altogether?  Simple.  Raise the bar on AOE/COE for cumulative trauma claims to match that of psyche claims: predominant cause.

If there is a diagnosis which applicant alleges is industrial, then the burden should be on applicant to prove, by a preponderance of the evidence, that the predominant cause of the cumulative trauma is predominantly caused, that is, more than 50%, by actual events of employment.

Now, I’m sure the applicant attorneys are demanding I turn in my California Bar card and the lien claimants are clutching their pearls and seething at this idea, but the logic is sound and follows the exact same logic as that which guided a raised bar for psyche claims. 

CT claims can be used to retaliate against employers and are, for the most part, maneuvers around statutory defenses. 

They are also so entangled with the normal decline of the human body that they have turned employers and the workers’ compensation system into universal healthcare providers.  Any affliction that affects the human body, if it was in the slightest way accelerated while applicant happened to be working, becomes a CT claim.

In your humble blogger’s estimation, that presents a reasonable compromise between the absurdity that is the cumulative trauma theory now, and the secret desire of every defendant in California to have CTs banned altogether.  

But what about you, dear reader?  What do you think?