By: Arthur H. Kravitz
You are interviewing a prospective client who has recently been diagnosed with Carpal Tunnel Syndrome or ulnar neuropathy or shoulder impingement or degenerative disc disease, (take your pick) and when you ask on what date did the accident happen, the answer is “I didn’t have an accident.” Of course, you then ask “how were you injured?” and the answers may include: I sit there and type all day, or I pull this lever five hundred times a day, or I have to sit in this position reaching and pulling, (insert your favorite repetitive motion). The answer may be as simple as “my doctor told me that it came from the job I do every day.” The law prefers accidents. How many times have you as a petitioners’ attorney said that to prospective clients who are not sure whether they have had an accident at work. All they can tell you is that their hand, elbow, shoulder, back etc. hurts and it is from the years of working at their particular job. Sometimes they do not even relate it to work in their own minds until their doctor tells them. You try several times to get them to pinpoint a particular day when they first felt that pain or a particular activity that caused it. When you are finally convinced that there was no “accident”, welcome to the world of occupational disease claims.
If you are faced with having to file and prove an occupationally-induced injury, do not despair. Occupational claims are just as valid as accidental ones, and with the appropriate planning and gathering of proof, they are as welcomed under the Workers’ Compensation Law as accidental ones. In order to better understand how occupational claims are treated today, we will briefly look at the origin and transformation of that law over the past ninety years.
In the beginning, that is 1911, when the original Workers’ Compensation Law was enacted in New Jersey, there was no provision for compensable occupational diseases. If the worker was not injured in an accident, it was not compensable. Non-accidental injuries or illnesses were subject to common law remedies, with the common law defenses working to prevent recoveries in many cases. In 1924, the legislature amended the Act to extend Workers’ Compensation to ten certain enumerated occupational diseases caused by metal poisoning or chemical exposure (including anthrax), N.J.S.A. 34:15-30. However, it was not until a further amendment of Section 30 in 1949 did orthopedic injuries caused by cumulative or continuous minimal traumata become compensable. In that amendment, the legislature defined “compensable occupational disease” to include all diseases “arising out of and in the course of employment, which are due to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or employment…” R.S. 34:15-31 as cited in Bondar v. Simmons Co., 23 N.J.Super. 109, 112-113 (App. Div. 1952). The final amendment to this section was effective January 10, 1980 by inserting “in a material degree” after the word “due” and by adding a part (b) which made deterioration due to the natural aging process noncompensable.
Bondar should be read because in just a few pages, the Appellate Division established several important principles which still guide our handling of occupational claims. Bondar involved a Petitioner who pushed and pulled a lever five to seven hundred times a day for five years, eventually causing bursitis in his shoulder. The Respondent denied the claim on the basis that bursitis was not a generally recognized occupational disease and was peculiar to this Petitioner and not to his “trade, occupation, process or employment as required by the statute.” The court rejected that argument and held that the Legislature intended that all occupational diseases be compensable, and that finding a disease is compensable “must be decided on the peculiar characteristics of each employment and the effect it has on the individual who suffers from that employment.” Bondar, supra at 115-116. The Bondar Court made it clear that the employment itself need not be innately dangerous or the sole cause of the occupational injury. It is sufficient that the Petitioner prove that the employment and the specific occupational effort was sufficient to cause or aggravate the normal degeneration of the particular body part involved, even if the disease “arises by reason of the susceptibility of the particular claimant to the deleterious effects of his occupation.” Bondar, supra at 116. Bondar was affirmed by the New Jersey Supreme Court at 12 N.J. 361 (1953).
The lessons of Bondar can be summarized quite simply and apply just as well today as they did over fifty years ago. If the occupational effort either directly, or by way of aggravation, exacerbation or acceleration caused an injury, then it is compensable, regardless of the personal susceptibility of the Petitioner. The burden of proof remains on the Petitioner, but that is a burden that can easily be met in many cases with the proper description of the effort and the medical testimony applying that effort to the specific orthopedic or neurologic condition. For these types of cases, I strongly recommend reviewing some of the recently-decided cases on the website of the Division of Workers’ Compensation. Most of the modern literature supports the nexus between carpal tunnel syndrome and job factors. In 1997, the National Institute of Occupational Safety and Health conducted a study entitled “A Critical Review of Epidemiologic Evidence for Work Related Muscular Skeletal Disorders of the Neck, Upper Extremity and Low Back”. After reviewing thirty studies, NIOSH determined that a relationship exists between an exposure to a combination of occupational risk factors. This is published at www.cdc.gov/niosh/ergtxt5a.html.
Two more recent studies have rekindled the debate over the relationship of the development of CTS to repetitive tasks, particularly computer use. The Mayo Clinic study, published in the June 2001 issue of “Neurology” for the American Academy of Neurology, consisted of a survey of questionnaires distributed to 257 employees of the Mayo Clinic who used a computer six hours a day. Out of the 257 respondents, 29.6 % reported paresthesia, 10.5% met clinical criteria for CTS and 3.5% were diagnosed by EMG. Dr. J. Clark Stevens, who headed the study, said that he “found that at least in this group frequent computer use does not seem to cause this syndrome”.
The second study performed in Denmark was published in the June 11, 2003 issue of the Journal of the American Medical Association. This survey of trade unionists showed incidents of new or worsened carpal tunnel syndrome after one year of 5.5 %. The study failed to correlate computer use to CTS, but found a significant association between mouse use of greater than 20 hours per week and CTS.
Both the Danish study and the Mayo Clinic study have been criticized for their inherent flaws, including sample size and limitations in time period and computer use.
Based on these studies, there is an increasing body of defense expert opinion that a causal link between carpal tunnel syndrome and repetitive stress cannot be proven with sufficient certainty to represent a compensable condition under the New Jersey Workers’ Compensation Act.
However, in 2003 the Supreme Court of New Jersey considered the burden of proof in occupational disease cases. In Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003), Justice James Coleman writing for the unanimous court, concluded that in New Jersey, it is sufficient to prove that exposure to risk or danger in the workplace was, in fact, a contributing cause of the injury. Direct cause is not required but rather aggravation, acceleration or exacerbation of disabling symptoms is sufficient if based on competent evidence. The Court determined that it may not be scientifically possible for an injured person to prove decisively the medical cause of the injury. As a result, the Supreme Court in Lindquist adopted a standard for workers’ compensation cases that it had set in Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), specifically, that “a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The evidence of such scientific knowledge must be proferred by an expert who is sufficiently qualified by education, knowledge, training and experience in this specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply to the scientific methodology, and to explain the basis of the opinion reached”.
Lindquist finds no less applicability in repetitive stress injures. This issue was recently addressed in a matter before the New Jersey Division of Workers’ Compensation, in Wehmeyer v. Shoprite Supermarket, available at www.nj.gov/labor/wc/cases/wehmeyer.htm. In this case, the Judge of Compensation, decided the claim of an appetizer clerk whose primary job was to slice deli. The respondent’s expert testified that carpal tunnel syndrome is an idiopathic condition and that studies relating carpal tunnel syndrome to repetitive stress were not sufficiently conclusive.
The Judge applying standards set forth in Laffey v. City of Jersey City, 289 N.J. Super 292 (1995), held “the standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood true. It need not have the attribute of certainty, but it must be founded in reason and logic; mere guess work or conjecture is not a substitute for legal proof”. The Judge of Compensation applied the standards set forth in Lindquist to conclude that the petitioner had proven to a reasonable degree of medical certainty that the carpal tunnel syndrome was related to a material degree to her occupation as a deli clerk.
Although the scientific debate over the causes of many joint diseases may continue, such a debate may ultimately have little impact on the compensability of repetitive stress injuries filed under New Jersey’s Workers’ Compensation Act.
