OVERUSE SYNDROME, REPETITIVE MOTION & CUMULATIVE TRAUMA INJURYAt the outset it should be noted that–every employer subject to the provisions of the Oklahoma Workers’ Compensation Code must pay, or provide as required by that same Workers’ Compensation Law, compensation or a weekly check &/or lump sum cash workers’ compensation settlement according to the schedules of the Oklahoma Workers’ Comp Rules for the disability of an employee resulting from a cumulative trauma, repetitive motion, or overuse syndrome accidental personal injury sustained by an Oklahoma injured worker arising out of and in the course of his or her employment. Attorneys at THE ASH LAW FIRM routinely represent injured clients with these type of cumulative trauma injury cases before the Oklahoma City & Tulsa Workers’ Compensation Court.
Occupations likely to cause repetitive motion, cumulative trauma & overuse syndrome injury(ies) include assembly work, manufacturing, clerical work, cashiering, data input or other such jobs offering poor ergonomics, repeated exertions and serious microtrauma including vibration. The body parts most affected by cumulative trauma and repetitive motion injuries are the hands, wrist, elbow & shoulder. Various syndromes & injuries can result including, but not limited to carpal tunnel syndrome, cubital tunnel syndrome (ulnar nerve damage &/or compression at the worker’s elbow), epicondylitis, tendonitis, bursitis, DeQuervain’s syndrome, ulnar nerve entrapment, trigger finger, ganglion cysts, stenosing tenosynovitis, shoulder injury (including impingement syndrome, rotator cuff tendonitis & “frozen shoulder”) and other injury to an injured worker’s tendons, ligaments, rotator cuff & such. Typical symptoms include pain, numbness, swelling, tingling, weakness and loss of flexibility, strength & even sensation of the affected body part.
OKLAHOMA CUMULATIVE TRAUMA & REPETITIVE MOTION INJURY DEFINED OKLAHOMA EMPLOYER LIABILITY FOR CUMULATIVE TRAUMA & OVERUSE SYNDROME WORKERS’ COMPENSATION INJURY CASE:The Oklahoma Workers’ Compensation Code provides that any “Compensable injury”, including those caused by repetitive motion, cumulative trauma and overuse syndrome, means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of the worker’s employment, but only if such employment was the “major cause” of the specific injury or illness. Unlike other Oklahoma work comp injuries–an Oklahoma City or Tulsa cumulative trauma or repetitive motion injury is compensable even in the absence of evidence of a specific incident and even if it cannot be otherwise identified by time, place and occurrence. However–as with all industrial injury–any repetitive motion and cumulative trauma injury must be established by the injured worker &/or his or her attorney or lawyer by objective medical evidence. Finally, Any medical opinions submitted to the Oklahoma Workers’ Compensation Court addressing the compensability of a cumulative trauma repetitive motion or overuse syndrome injury must be stated within a reasonable degree of medical certainty–to be accepted by the Court.
PROOF NECESSARY TO ESTABLISH A CUMULATIVE TRAUMA, REPETITIVE MOTION & OVERUSE SYNDROME WORKERS’ COMPENSATION CASE IN OKLAHOMA:The Oklahoma Workers’ Compensation Court has determined that “cumulative trauma” means a compensable injury, the major cause of which results from employment activities which are repetitive in nature and engaged in over a period of time and which is supported by objective medical evidence submitted by the injured employee &/or his or her attorneys or lawyers to either the Oklahoma City or Tulsa Workers’ Compensation Court. “Objective medical evidence”, in turn, has been determined by the Oklahoma courts to be objective findings which cannot come under the voluntary control of the injured worker and includes testimony that rests on reliable scientific, technical or specialized knowledge, and assists the Oklahoma City or Tulsa Workers’ Compensation Court to understand the evidence or to determine a fact in issue. Finally, “major cause” has been defined by the Oklahoma Workers’ Comp Court as one resulting in more than fifty-percent (50%) of the resulting injury, disease or illness. In this regard–Any finding of major cause must be established by a preponderance of the evidence.
NOTE: The Oklahoma City & Tulsa Workers’ Comp Courts have determined that in Oklahoma a ‘compensable injury’ shall not include the ordinary, gradual deterioration or progressive degeneration caused by the aging process, unless the employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence. Furthermore–any claim, and subsequent disability, that has as its source a physical condition resulting from incremental damage or injury or a gradual deterioration of physical health, which is caused by a condition arising out of and in the course of employment, must be proven by an injured worker &/or his or her attorney or lawyer by a preponderance of the evidence presented to either the Oklahoma City or Tulsa Workers’ Compensation Court.
FILING, PROCEDURE & NOTICE REQUIREMENTS: CUMULATIVE TRAUMA CASE STRICT STATUTORY REQUIREMENTS FOR INJURED EMPLOYEE FILING TIMELY & PROPER WRITTEN NOTICE WITH THE OKLAHOMA WORKERS’ COMPENSATION COURT OF HIS OR HER CUMULATIVE TRAUMA OR REPETITIVE MOTION INJURYAny claim for compensation under the Oklahoma Workers’ Compensation Code, to include benefits or even a cash settlement for a cumulative trauma or repetitive motion injury submitted by an injured employee &/or his or her attorney or lawyer under the Oklahoma Workers’ Compensation code is only properly commenced with the filing of a notice of injury (formally designated as the FORM 3 EMPLOYEE’S FIRST NOTICE OF ACCIDENTAL INJURY AND CLAIM FOR COMPSENSATION ) with the Workers’ Compensation Court Administrator in Oklahoma City. Provided further however, with respect to any disease or injury caused by repeated &/or cumulative trauma causally connected with such worker’s employment, any such claim submitted by an injured worker &/or his or her attorney or lawyer must be filed within two (2) years of the date of last trauma or hazardous exposure. Furthermore, any cumulative trauma or repetitive injury claim may also be filed within two (2) years of the last medical treatment received by the worker which was also authorized by the employer or the insurance company or payment of any compensation (or remumeration paid in lieu of compensation). It should be clearly noted, however, that: the filing of any form or report by the employer or its insurance company shall not toll the above limitations. And finally–Post termination cumulative trauma injury claims must be filed within six (6) months of the hurt employee’s termination of employment, and if not, are forever barred.
STRICT STATUTORY REQUIREMENTS UNDER OKLAHOMA LAW FOR INJURED EMPLOYEE GIVING PROPER & TIMELY WRITTEN &/OR ORAL NOTICE TO HIS OR HER EMPLOYER &/OR ITS INSURANCE COMPANY OF HIS OR HER OVERUSE SYNDROME OR CUMULATIVE TRAUMA INJURY:There is be a rebuttable presumption that any injury caused by cumulative trauma does not arise out of and in the course of a worker’s employment unless oral or written notice is given by the employee to the employer within ninety (90) days of the employee’s separation from employment. Such presumption must be overcome by the hurt worker &/or his or her attorney by a preponderance of the evidence put before the Oklahoma City or Tulsa Workers’ Compensation Court.
LIABILITY OF SUCCESSIVE EMPLOYERS FOR CUMULATIVE TRAUMA CASESBy nature cumulative trauma, overuse syndrome & repetitive motion Workers’ Compensation injuries occur over an extended period of time. Understanding this any such injury may have been caused in part by hazardous exposure by the injured employee over the course of multiple occupations, many successive employers & even exposure with only one employer who has changed workers’ compensation insurance companies one or more times during the duration of the workers’ injurious employment activity(ies). Generally, however, the last employer &/or its workers’ comp insurance company where the worker was exposed to activity causing the harm is alone responsible for 100% of the benefits and treatment due the hurt employee for his or her cumulative trauma case. Consider the particular statute dealing with liability for overuse and cumulative trauma injury in Oklahoma–Title 85 section 317 which provides, in pertinent part, as follows:
Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer shall alone be liable therefore, without right to contribution from any prior employer or insurance carrier.
REPETITIVE MOTION CUMULATIVE TRAUMA TEMPORARY TOTAL “TTD” CHECKSince overuse & cumulative trauma injuries are by definition caused by routine & ongoing work activity, proper treatment of the condition usually necessitates removing the injured worker from the activity that caused injury in the first place–at least on a temporary basis. By not working the hurt employee and his or her family will incur immediate wage loss necessitating the payment of workers’ compensation wage replacement benefits, commonly referred to under the Oklahoma Workers’ Compensation system as temporary total disability benefits, or “TTD”. In Tulsa & Oklahoma–cases of temporary total disability are compensated at the rate of seventy percent (70%) of the employee’s average weekly wages paid to the injured employee during the continuance of his or her healing period and as otherwise limited by law (and discussed below).
LIMITATIONS ON SCOPE & DURATION OF TEMPORARY TOTAL DISABILITY AWARDS FOR REPETITIVE MOTION INJURIES IN OKLAHOMA.Total cash payments of compensation for temporary total disability benefits or settlement for any one injured worker under Oklahoma Workers’ Compensation law may not exceed a maximum of one hundred fifty six (156) weeks in the aggregate except for good cause shown, as determined by either the Oklahoma City or Tulsa Workers’ Compensation Court–as the case may be and upon timely and proper application of the hurt worker &/or his or her attorneys or lawyers. However, total cash payments of compensation or settlement for temporary total disability, inclusive of consequential injuries, may not exceed a maximum of three hundred (300) weeks in the aggregate.
LIMITATIONS ON TEMPORARY TOTAL DISABILITY PAYMENTS IN OKLAHOMA FOR OVERUSE SYNDROME & CUMULATIVE TRAUMA CASES DEFINED AT LAW AS ‘SOFT-TISSUE’ INJURY:The Oklahoma City & Tulsa Workers’ Compensation Court has determined that in any case of a nonsurgical soft tissue injury, in which the employer &/or its insurance company has promptly provided medical care, temporary total compensation cannot exceed eight (8) weeks. However, any hurt worker who has been recommended by his or her treating doctor for one or more injections (i.e. such as an epidural steriod injection) can petition individually or through his or her attorneys or lawyers the Court for one extension of temporary total compensation and the Oklahoma or Tulsa Workers’ Compensation Court can order such an extension, not to exceed eight (8) additional weeks. Additionally–any injured employee who has been recommended by a treating physician for surgery for a “soft tissue injury” can petition either the Oklahoma City or Tulsa Workers’ Compensation Court for one extension of temporary total compensation and the Oklahoma Workers’ Compensation Court can order such an extension, but not to exceed sixteen (16) additional weeks, if the injured worker’s treating surgeon indicates that such an extension is appropriate or as agreed to by the parties, to include the employer & its insurance company on one hand and the hurt employee and his or her attorney or lawyer on the other. In the event surgery is performed the period of temporary total disability is subject to the limitations described above.
NOTE: The Oklahoma City & Tulsa Workers’ Compensation Court has determined that “soft tissue injury” means damage to one or more of the tissues that surround bones and joints and that the term includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears. The Oklahoma Courts have specifically held that cumulative trauma & repetitive motion injuries are to be considered a soft tissue injury.
OVERUSE SYNDROME REPETITIVE MOTION PERMANENT DISABILITY AWARDAccording to Oklahoma Workers’ Compensation law an injured Oklahoma City or Tulsa area employee will only be entitled to appropriate and necessary medical care and temporary total disability for a cumulative trauma or repetitive motion injury unless there is objective medical evidence of a permanent anatomical abnormality and–if there are these serious medical findings the hurt worker is also entitled to a reasonable permanent partial disability cash settlement award. In determining the existence of such an structural abnormality, the Oklahoma City or Tulsa Workers Compensation Court may consider if there is credible medical evidence produced by the injured worker &/or his or her attorneys or lawyer that his or her ability to earn wages at the same level as before the injury has been permanently impaired. However–when determining a worker’s physical or anatomical impairment for a repetitive motion or cumulative trauma injury, neither a physician, any other medical provider or a judge of either the Tulsa or Oklahoma City Workers’ Compensation Court may consider the injured worker’s subjective complaints of pain. Furthermore–the determination of a worker’s permanent disability settlement is in all cases the responsibility of a Judge of the Oklahoma Workers’ Compensation Court.
PERMENANT PARTIAL DISABILITY FOR OKLAHOMA CUMULATIVE TRAUMA & OVERUSE SYNDROME DEFINED:The Oklahoma City & Tulsa Workers’ Compensation Courts have determined that “permanent partial disability” (or ‘PPD’) for a overuse syndrome or cumulative trauma injury cases means permanent disability which is less than total and is equal to or the same as the worker’s permanent impairment. In turn these courts have defined “permanent impairment” to mean any anatomical abnormality after the injured worker has achieved maximum medical improvement which abnormality or loss a doctor considers to be capable of being evaluated at the time the impairment rating is made. Finally, the term “maximum medical improvement” means that no further material improvement would reasonably be expected to a worker’s injured body part from medical treatment or the mere passage of time.
EVIDENCE NECESSARY TO ESTABLISH WORKER’S ENTITLEMENT TO A PERMANENT PARTIAL DISABILITY SETTLEMENT IN OKLAHOMA FOR HIS OR HER CUMULATIVE TRAUMA OR REPETITIVE MOTION INJURY:Any claim submitted by an hurt employee &/or his or her attorney or lawyer for compensation for a permanent partial disability settlement must be established by competent medical testimony and which must also be supported byobjective medical evidence & findings and include an evaluation by a doctor stating his or her medical opinion or finding of the injured employee’s percentage of permanent impairment (and whether or not the impairment is job-related and caused by the overuse syndrome or cumulative trauma injury). Expert medical opinions addressing permanent impairment must be stated within a reasonable degree of medical certainty.
THE AMERICAN MEDICAL ASSOCIATION’S GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (the “GUIDES”) & OKLAHOMA WORKERS’ COMPENSATION PERMANENT PARTIAL DISABILITY CUMULATIVE TRAUMA AND REPETITIVE MOTION INJURY SETTLEMENTS:Except for SCHEDULED INJURIES (i.e. fingers, thumb, hand, wrist, elbow, arm, eyes, ears/hearing, toes, feet, ankles, knees, & leg injuries); any examining physician can only evaluate permanent impairment/disability in accordance with the latest publication of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” in effect at the time of the injury. In other words–any physician evaluating permanent impairment for a cumulative trauma or repetitive motion injury case in Oklahoma for a NON-SCHEDULED body part (namely an injury to a worker’s disc, back, neck, spine, shoulder, hips, head & brain) must strictly follow the AMA Guides. In all cases medical evaluations & opinions addressing permanent impairment for overuse syndrome injuries must include an apportionment of injury causation & must be stated within a reasonable degree of medical certainty.
PERMANENT PARTIAL DISABILITY CASH SETTLEMENT AWARDS FOR CUMULATIVE TRAUMA & OVERUSE SYNDROME ‘SCHEDULED INJURIES’In cases of permanent partial disability awards obtained by an injured worker & his or her attorney or lawyer for a SCHEDULED INJURY cumulative trauma or repetitive motion case the compensation awarded by an Oklahoma City or Tulsa Workers’ Compensation Judge will be seventy percent (70%) of the injured worker’s average weekly wages [with a minimum of One Hundred Fifty Dollars ($150.00) per week but not to exceed Three Hundred Twenty-three Dollars ($323.00) per week] paid to the hurt employee for the period prescribed by the following schedule:
- Thumb: sixty-six (66) weeks
- First (index) Finger: thirty-nine (39) weeks
- Second Finger/great toe: thirty-three (33) weeks
- Other (than great toe) Toes: eleven (11) weeks
- Third Finger: twenty-two (22) weeks
- Fourth (little) Finger: little seventeen (17) weeks
- Hand/foot: two hundred twenty (220) weeks
- Arm/leg/eye: two hundred seventy-five (275) weeks
- Deafness: three hundred thirty (330) weeks
- Total deafness in one ear: one hundred ten (110) weeks
The Tulsa & Oklahoma City Workers’ Compensation Court has established that the loss of the first phalange of a worker’s thumb, finger or toe will be considered equal to the loss of one-half (1/2) of such thumb, finger, toe and compensation awarded will be one-half (1/2) of the amount above specified. Furthermore–the loss of more than one phalange will be considered as the loss of the entire thumb, finger, or toe. However, Oklahoma courts have determined that in no case will the amount received for more than one finger exceed the amount provided in the above schedule for the loss of a worker’s hand.
NOTE: The Tulsa & Oklahoma City Workers’ Compensation Court has established that any permanent loss of use of a thumb, finger, toe, arm, hand, foot, leg or eye will be considered as the equivalent of the loss of such thumb, finger, toe, hand, arm, foot, leg or eye.
NOTE: The Oklahoma Work Comp Court has determined that for the permanent partial loss of use of any member, loss of hearing or sight of an eye, that the hurt worker shall receive seventy percent (70%) of the injured employee’s average weekly wage during that portion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye which the partial loss of use thereof bears to the total loss of use of such member, loss of hearing or sight of an eye.
Oklahoma Workers’ Compensation permanent disability settlement charts can be found at the following link: PPD-CHARTS1