January 13, 2010

Cumulative Trauma Injury Claims

In Georgia a cumulative injury claim is governed by O.C.G.A. 34-9-1. As with a typical, isolated injury type claim, the employee must prove an accident and injury arising out of and in the course of employment for it to be compensable. The problem with cumulative trauma injuries is the "accident" date and time is not easily discernable. Nevertheless, it can still be compensable under Georgia law. Thomas v. Ford Motor Co., 181 S.E.2d 874 (1971).

Where the employee has a cumulative trauma, or gradual injury, the date of accident to be utilized is the date the injury prevents him or her from working. In other words, the date of accident is typically when disability manifests itself. For "medical only" claims that do not result in any disability the date of accident chosen should be the date the injury, or pain requires medical attention.

Georgia courts are also clear that a cumulative trauma "aggravation" to a pre-existing condition is compensable. There does not need to be a specific incident. The gradual wear and tear of a job is enough as long as it is a contributing factor to the employee's disability and/or medical condition. However, once the aggravation from a cumulative trauma injury ends so does the employer/insurer's responsibility. O.C.G.A. 34-9-1; Worthington Indus. v. Sanks, 492 S.E.2d 753 (1997). The line between a pre-existing condition and cumulative trauma aggravation can be blurry, so it is up to the judge as the factfinder to determine this issue.

David W. Willis
David & Rosetti, LLP
(404) 446-4491

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