By: Faith Searles, Associate, Tampa

Workplace injuries are often associated with a single incident that immediately puts the employer on notice that they must investigate the cause of the accident, the circumstances and facts surrounding it, and hopefully eliminate or mitigate the potential for a similar accident to occur in the future. However, workplace injuries are not always the result of a sudden, isolated event. In fact, many workplace injuries develop over time from minor, cumulative movements that are performed on a recurrent basis.  While it may come as a surprise to employers or adjusters, one in eight American workers will be diagnosed with a work related repetitive stress injury (“RSI’) at some point in their careers. The Florida Legislature has extended compensability of occupational RSI under FS Chapter 440. Given the inconspicuous nature of these injuries, it can be difficult for the employer to verify the facts and circumstances surrounding the alleged occupational cause. Thankfully, the law provides that the claimant bears the burden of proving the injury through clear and convincing evidence, perhaps because of the difficulty involved in investigating and defending such claim or, possibly, because these same repetitive injuries can be related to functions performed in a worker’s everyday life outside of employment.  This provides the employer with additional protection from providing medical care or benefits for RSIs actually caused by hobbies such as sport fishing, sewing, golf or tennis.

The claimant is required to prove the following elements: (1) prolonged exposure to a condition or activity; (2) the cumulative effect of which is injury or aggravation of a preexisting condition; and (3) the job subjected the injured worker to a hazard greater than that to which the public is exposed. See Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980).  Significantly, in repetitive trauma cases, the proof required to overcome the non-compensable presumption in FS 440.02(1) is clear and convincing evidence. This is a higher standard of proof than competent, substantial evidence or a preponderance of the evidence required in a typical civil suit or workers’ compensation claim. As noted in Festa, these standards also apply to instances where a preexisting condition is allegedly aggravated by some job related physical cause. For example, consider University of Florida v. Massie, 602 So.2d 516 (Fla. 1992), a Supreme Court case which provides that for a preexisting condition to be compensable, the condition must be aggravated by some non-routine, job related physical condition, or by some form of repeated physical trauma. Interestingly, even when the claimant has established this, if the injury is pre-existing, she must still present evidence from a medical expert that specifically addresses whether the aggravation was the major contributing cause of the claimant’s need for medical treatment and whether the claimant needed the specific treatment requested, per the requirements of FS 440.09(1)(b). See Tice v. Albertson’s, 940 So.2d 1253.

While overcoming such a burden may seem challenging for a claimant, there are several cases that can be relied upon by a resourceful claimant’s attorney. In Houle v. Asphalt Sealing & Stripping Co., Inc., 397 So.2d 669 (Fla. 1981), for example, the Court found in favor of compensability when the claimant’s doctors opined that heavy lifting over time was consistent with the claimed back injury. Likewise, a waitress who suffered a ruptured disc as a result of repetitive trauma to her back due to the tray service duties of her job was entitled to recover in Daugherty v. Red Lobster, 550 So.2d 171 (Fla. 1st DCA 1989). Additionally, Johnson v. Knight, 594 So.2d 836 (Fla. 1st DCA 1992), can be used by a claimant to support compensability of a RSI claim as that court held that the law does not always require expert testimony to prove the hazard element under Festa.

To prevail on a repetitive trauma claim, claimant’s counsel must take the time to fastidiously elicit testimony from the claimant and the authorized physicians or medical experts that specifically outline the job tasks or duties that exposed the claimant to the risk of injury greater than that to which she is exposed in her non-employment life. See Orlando Precast Products v. Ciofalo, 501 So.2d 1326 (Fla. 1st DCA 1986)(requirement that claimant show employment condition exposed him to a greater risk of injury than that to which he is exposed in his non-employment life met by evidence that claimant, a truck driver, was subjected on a daily basis to prolonged sitting and bouncing while driving, twisting, turning and lifting the body to enter and exit the truck, and lifting heavy rubber hoses to fill and empty the tank); Winn-Dixie Stores v. Morgan, 533 So.2d 783 (Fla. 1st DCA 1988)(finding compensable wrist injury under repeated trauma theory supported by evidence that claimant’s job history included variety of tasks such as stocking shelves, bagging groceries, unloading trucks, moving carts of frozen foods, and cleaning and stocking produce counters). Such work is not only time consuming, but is costly. Many claimants’ attorneys are unwilling to accept repetitive trauma claims because of the increased burden, costs, and limited chance for prevailing.

If the claimant is successful in obtaining testimony to meet this burden, as in the cases above, the employer/carrier should contradict such evidence by eliciting testimony from the claimant regarding her activities outside the work place that may present similar risks or exposure. Presenting an alternate explanation or competing outside cause that is non-employment related for the injury is critical. Moreover, the employer/carrier should present similar non-work related scenarios to the physicians to obtain testimony that supports activities performed in the worker’s personal time could have been the source of the injury or aggravation. To chip away at the evidence supporting compensability, the employer/carrier can present evidence that shows members of the general public are exposed to the same risks.  For example, in the case of Daugherty v. Red Lobster, supra, the employer/carrier failed to present testimony that the cumulative effect of bending repeatedly with a tray resulted in injury or that the general public may be exposed to the same risks as the waitress; thus, the unrefuted testimony of both the waitress and her treating physician were found to be erroneously rejected by the JCC. Consequently, the only evidence presented established a compensable injury under a theory of repetitive trauma. This outcome could have been avoided had the employer/carrier been prepared to contradict the testimony provided by the claimant by asking the medical experts whether the same injury could have occurred as a result of bending to pick up or put down, for example, grocery bags, a laundry basket or a small child. Clearly, these are all activities that are performed outside of work by the general public on a regular basis. Presenting such evidence in a repetitive trauma claim will give the employer/carrier a stronger defense. 

Because of the heightened standard of proof, repetitive trauma claims must be investigated thoroughly prior to accepting compensability. There are many factors to consider, and the exposure may be significant. Thorough discovery and aggressive defense can often result in a victory, or a settlement at a fraction of the exposure. As always, our attorneys are available to evaluate the facts of a claim for defenses available on repetitive exposure claims.