There Oughta Be a Law
How your are – and aren't – protected
By Deborah Quilter
First published November 11, 1997

Computer users who develop repetitive strain injury (RSI) on the job are in for a series of shocks. Even if you can get time off and therapy, you may relapse after the tiniest strain, or your arms may feel sore all the time. And there's the rub: Working in pain can turn a moderate injury into a crippling disability.

But what if your job requires constant computer use? Federal Occupational Safety and Health Administration (OSHA) ergonomic standards are nonexistent. Workers' compensation and the Americans with Disabilities Act are safety nets riddled with holes.

POOR COMPENSATION

Workers' compensation is intended to provide medical care or disability payments to injured workers. Employees give up the right to sue their employers in exchange for the right to be paid for job-related injuries without having to prove their employers were at fault. However, many labor experts worry about recent trends that erode this protection.

Workers' compensation coverage varies from state to state, and some states are more restrictive than others. In Virginia, workers' compensation covers "ordinary diseases" of life, including carpal tunnel syndrome, as long as it can be "established by clear and convincing evidence ... to an absolute degree of medical certainty" the disease was caused by work.

This kind of proof is difficult, because people can get RSI from many hand-intensive activities. Kentucky excludes carpal tunnel syndrome, considering it to be a result of the natural aging process. An Ohio bill that would force workers to show they could not have contracted RSI outside the job was passed by that state's legislature and signed by the governor.

Even in states that recognize RSI, establishing a workers' compensation claim can be further complicated by your physician. Your doctor must be willing to state that your disability is work-related and process the enormous volume of paperwork a workers' compensation case entails.

The federal government is not much help, either. The federal OSHA has not enacted rules requiring employers to provide employees with ergonomic workstations. However, the California OSHA recently passed an ergonomics standard requiring California companies to be responsible for improving work conditions if two or more employees suffer muscle, nerve, or joint injuries as a result of performing identical, repetitive tasks on the job.

Getting legal help for your RSI claim is a complex proposition. Local laws and regulations vary, so you should seek qualified counsel for your own situation. But here are some answers to a few common questions.

Q: My doctor says my forearm tendinitis was caused by computer work, but the insurance company doctor says it wasn't. My regular medical carrier says workers' compensation should cover my medical bills, but workers' comp denied my claim. I need physical therapy, but I can't afford it because I'm not working. What should I do?

A: It's important to get appropriate medical treatment right away. Delays can lead to the worsening of your condition. In some states, such as New York, your private insurance carrier should cover your medical expenses in a contested case. When the injury is established as work-related, the workers' compensation carrier will reimburse the private health insurance carrier, according to Vincent Rossillo, a Manhattan attorney who specializes in this area. However, he says if the health care provider charges more than is permitted under the workers' compensation fee schedule, you may not be reimbursed 100 percent.

Q: I developed bilateral carpal tunnel syndrome a year after being hired as a Web site designer. I was on disability for several months, but now I have to go back to work. The adjustments on my chair are broken, my keyboard is too high, and my doctor says I need a headset because I'm on the phone a lot. My boss declined my requests for new equipment. Not only that, I can't work long without getting sore, and my doctor told me not to continue activities that cause pain. I told my boss and he said, "Everybody has problems, but the work has to get done." Is my employer required to accommodate my needs? Can I be fired for not keeping up?

A: Workers' compensation does not require employers to provide ergonomic equipment. And here's more bad news: Contrary to popular belief, the Americans with Disabilities Act (ADA) does not necessarily allow you to keep your job if you become injured.

Under the ADA, your employer may be required to provide you with "reasonable accommodation" (such as ergonomic equipment) if doing so will allow you to perform the essential functions of the job. But if your job requires using a computer eight hours a day and you can't work because you're experiencing pain--even with ergonomic equipment--you can be fired for not keeping up.

Q: I asked for a lighter shift when I was diagnosed with RSI so I wouldn't have to type so much. Instead, they put me on the busiest shift, saying, "Take it or leave it." I kept working, and my injury got progressively worse until my doctor declared me permanently disabled. I'm 42. I can't drive, I'm in constant pain, and I'll never work again. Who do I sue for this?

A: You can't sue under the workers' compensation system. Workers' compensation covers wage replacement and medical benefits only. Monetary compensation for pain and suffering are not allowed.

However, you might have a claim under the Americans with Disabilities Act. The key is whether your disability is covered by the ADA. According to David Webbert, an attorney who represents injured workers in Maine, many federal courts don't consider carpal tunnel syndrome a serious disability. If it is covered and a lighter shift is available, the employer can't ignore that request without violating the ADA. "Putting that person on a more [strenuous shift] would be a violation of the ADA," says Victor Schachter, a San Francisco corporate labor lawyer.

For more information regarding the Americans with Disabilities Act, contact the United States Equal Employment Opportunity Commission's ADA Helpline at 800/669-EEOC. Or visit its Web site at www.eeoc.gov/laws/ada.html. The Workplace Injury Litigation Group (303/830-0112) has a list of plaintiff attorneys who deal with workers' compensation claims. The AFL-CIO has a Web page on workers' compensation and RSI at http://www.aflcio.org/safety/ergo.htm. California OSHA can be reached at 415/972-8515.

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