Monday, June 18, 2012

Repetitive Trauma Must be Fun

Last week, the Florida 1st District Court of Appeal ruled that an office worker who asserted multiple claims for repetitive trauma to her wrists from typing did not have to show her condition had changed or worsened to open a new claim, because every new exposure counts as a new injury.

In Rose v. Geico et al., No. 1D11-4843, Rebecca Rose began working for Geico Corp. in 1998 as an underwriter. Her job duties included data-entry work using a computer keyboard. She began complaining of numbness and tingling in her hands.

In April 1999, her doctor diagnosed her with bilateral carpal tunnel syndrome. Eight years later, in October 2007, her doctor recommended surgery on Rose's right wrist.

Rose submitted a petition for benefits in August 2008, identifying her date of injury as April 1, 1999.

Geico and its insurance carrier denied her claim for the surgery, asserting the statute of limitations for her to file a claim based on the 1999 date of injury had elapsed.

Rose then filed a second petition for a repetitive trauma injury, allegedly beginning Sept. 16, 2008.

Geico also denied this petition, but a judge of compensation claims determined that Rose's repetitive trauma injury was compensable.

In December 2009, the 1st DCA reversed the judge's award of benefits saying the only medical evidence at the administrative proceedings was the testimony of Rose's doctor, who had last examined Rose a year before her alleged date of injury in 2008 and that she could not say whether Rose's continuing use of a keyboard was causing her symptoms to continue or worsen without conducting diagnostic testing.

The court said such testimony was insufficient to prove an industrial cause of Rose's condition.

Rose then filed another petition for benefits, listing Feb. 1, 2010, as the date of injury.

The Judge of Compensation Claims (JCC) noted that two doctors both diagnosed Rose with carpal tunnel syndrome. Both doctors stated they could not form an opinion as to whether her current symptoms were any different from her symptoms in 2007.

Although Rose had EMG studies done in 2002, 2003 and 2007, she underwent no additional testing after that, so there were "no objective findings that would support a change in condition since 2007," the JCC said.

Absent such evidence, the JCC concluded that Rose failed "to prove a new accident or injury or an aggravation or exacerbation of a pre-existing condition."

The 1st DCA on Wednesday said that the JCC applied an incorrect standard of proof on Rose.

"Section 440.09(1), Florida Statutes (2009), requires that causation be established by clear and convincing evidence in cases of repetitive exposure," the court explained in its per curiam decision. "Nothing in these requirements places a burden on a claimant to prove that the condition has changed or somehow worsened."

The fact that the doctors were not able to say that Rose's symptoms in 2010 were different from her symptoms in 2007 was "not dispositive," the court said, since repetitive trauma can be proven by demonstrating a series of occurrences, the cumulative effect of which is injury.

In this case, Rose's undisputed testimony was that she engaged in extensive typing on a daily basis for 13 years, and an independent medical examiner opined that this type of work was a major contributing cause of her carpal tunnel. Such evidence, the court concluded, was enough to satisfy Rose's burden to prove an injury and its occupational cause.

The WorkCompCentral story on the case this morning has the attorneys on both sides commenting on the legal effect of the decision - but what strikes me about this case is that Rose keeps on working a job that she says keeps on hurting her. I'm unclear on the psychology or motivation for this.

As I returned from my bicycle ride yesterday I ran into a neighbor and we briefly talked. He commented that he wished he could be as "in shape" as me but that it was too much work.

I said that it's not work if it's fun, and riding bicycles is about the most fun in the whole world! (Yeah, I have a little SpongBob in me...).

Cycling is repetitive trauma. Your legs go up and down to power the crank at an average of 90 revolutions per minute (at least that's the target RPM for cyclists my age - much more than that and you risk heart redlining, and less than that and the cardiovascular benefit deteriorates dramatically).

If you ride for 2 hours, then your legs go up and down 10,800 times. If you ride for 3.5 hours then that's 18,900 times.

There's a lot of repetitive trauma going on with the legs. Knees, ankles, quadriceps, calves ... And when I'm done with 50 or 70 miles I hurt. My legs are sore. I'm tired.

But I do it the next day. And the day after that. In fact I do it every day (except for days when I'm traveling and can't rent a bike - and the anxiety I experience due to my compulsiveness is probably a psychological injury in workers' comp terms!).

I put myself through repetitive trauma every day because it isn't work. It's fun.

So ostensibly I have to think that Rose is having fun at work, otherwise why would she continue to engage in repetitive trauma that she knows leads to pain?

I get the rationale for recognizing repetitive or cumulative trauma. I don't get the rationale for staying on the job for 13 years knowing the whole time, and making claim the whole time, that the job is injurious.

I guess it must be fun.

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