RD71 - Expanding Coverage under the Virginia Workers’ Compensation Act for Injuries Caused by Repetitive Motion – November 24, 2020

Executive Summary:

The Virginia General Assembly enacted House Bill 617 in the 2020 session, directing the Virginia Workers’ Compensation Commission to engage a consultant to study expansion of Virginia’s workers’ compensation system to include injuries caused by repetitive motion. The Commission engaged WorkComp Strategies LLC to conduct this analysis. We are pleased to offer this report which contains the results of the analysis and options for addressing this change to the Virginia system.

The origin of House Bill 617 is a December 2019 report from Virginia’s Joint Legislative Audit and Review Commission (“JLARC") concerning the Virginia workers’ compensation system.(*1) JLARC found that Virginia was unique among state workers’ compensation systems in not covering workplace injuries resulting from cumulative trauma. The Virginia Supreme Court has repeatedly held that the Virginia Workers’ Compensation Act (the “Act") does not include traumatic injuries caused by repetitive motion.(*2) In 1997 the Act was amended to provide that hearing loss and carpal tunnel syndrome were covered by workers’ compensation.

As noted in the 2019 JLARC report, however, “cumulative trauma injuries are a well-established workplace injury." Our research, including interviews with occupational medicine specialists, confirms this assessment. Particularly with respect to frequent use of the arms and hands, “repetition, duration, and force of occupational tasks and the ergonomics of the work environment contribute to soft tissue damage" and nerve compression.(*3) We also confirmed, however, that establishing causation for such injuries can be difficult. This is due to several reasons, which we cover in this report. In summary, injuries caused by repetitive motion are well-established occupational injuries, but they present challenges in determining causation.

We provide four options for amending the Act to address this issue, which can be broadly categorized as follows:

1. Amend the occupational disease section and retain the current burden of proof;
2. Relax the causation standard and definitions used for occupational diseases;
3. Remove the exclusion of neck and back injuries as occupational diseases;
4. Amend the definition of injury by accident.

We discuss the risks involved with each option in the report. In terms of claims cost, they are organized above roughly in order of lowest impact to highest, meaning options 1 and 2 cover fewer expected additional claims, and options 3 and 4 cover more additional claims. There are other impacts associated with each option which are discussed in the report.

The purpose of this analysis is to identify approaches to expanding coverage in Virginia for legitimate occupational injuries. Any expansion of coverage involves new claims and new costs. But some approaches involve risk of un-predictability and increased litigation, which would add new cost to all stakeholders in the system, including the Commission. We call this risk “friction" cost. We believe that the more predictable the change, the better chance that employers will be able to manage legitimate claims and defend against non-occupational ones. Figure 1 on numbered page 2 of the report is a simple visualization of a plot of our four proposed options, where the risk of added friction cost is on the x axis and the risk of excluding legitimate claims is on the y axis. The four options are placed into four quadrants based on their relative weighting on these two factors.

For example, the risk of adding friction costs is greater for the option to amend the definition of injury by accident, and the risk of excluding medically justifiable claims is greater for the option to amend the occupational disease definition while retaining its current causation standard.

Based on insurance data, injuries from repetitive motion constitute approximately 2.1% of workers’ compensation injuries. Their respective share of overall claim costs, however, is 2.5%. This is due to some injuries, such as carpal tunnel syndrome, typically involving more expensive treatments, including surgery. Each option provided would have a different impact on the number of new claims added to the system. Costs are positively associated with claim frequency (both rise together). Figure 2 on numbered page 3 of the report shows a qualitative comparison of the four options based on four criteria: the risk of increased litigation; the risk of excluding legitimate work injuries; the risk of including non-work injuries; and the estimated overall cost. The criteria use a relative scale of low/medium/high.

For example, the option to relax the occupational disease causation standard would have a lower overall cost impact than removing the neck and back exclusion as well as relatively lower risks of increased litigation, excluding legitimate work injuries, and including non-work injuries. Adopting the option to amend the occupational disease definition to include RSI, but without also modifying the causation standard and associated higher burden of proof, would likely have a lower overall cost impact, but heightened risks of litigation and of excluding legitimate work injuries. This analysis suggests that in expanding coverage for injuries caused by repetitive motion, the General Assembly should consider also modifying the causation standard and required items of proof for occupational diseases, as it would reduce the risk of failing to achieve the stated goal of expanding coverage for occupational RSI.

In summary, workers’ compensation is a system of insurance that provides coverage for medical treatment and lost income benefits to employees injured as a result of their employment. It is intended to provide employers and their employees with compensation when workplace injuries occur without having to resort to legal expenses. Occupational injuries from repetitive motion constitute a relatively small portion of claims across the country, and we anticipate Virginia would have a similar experience, although depending on how this change is implemented, Virginia may experience more claims and associated costs than anticipated.
(*1) Joint Legis. Audit & Rev. Comm’n, Virginia’s Workers’ Compensation System and Disease Presumptions (Dec. 16, 2019) (available at http://jlarc.virginia.gov/pdfs/reports/Rpt530-1.pdf).
(*2) See, e.g., The Stenrich Group v. Jemmott, 251 Va. 186, 199 (1996) (“[J]ob-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable.")
(*3) See, e.g., O’Neil, Barbara A. et al., “Chronic occupational repetitive strain injury," Can. Fam. Phys. (Feb. 2001) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2016244/)