August 16, 2001 1:35 PM PDT

Case shines light on tech injuries

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  Preventing pain on the job
Meg Honan, ergonomics expert, Signore Ergonomics Group
A worker fired over injuries that prevented her from typing cannot sue her former employer under federal anti-discrimination law, an appeals court has ruled.

Wednesday's decision by the 9th U.S. Circuit Court of Appeals casts a spotlight on disability protections for computer use, an issue that is of burgeoning concern in the workplace. So-called repetitive stress injuries (RSI) affect workers in a wide range of industries, ranking as one of the top causes of absenteeism, according to the Bureau of Labor Statistics.

The decision marks what employee attorneys say is a sobering trend, particularly in technology workplaces where long stretches of computer keyboard use are as much an ordinary part of the workday as the morning cup of coffee. Workers compensation lawyers say RSI claims can take up as much as 60 percent or 70 percent of their workload, with a large and growing number of these resulting solely from computer use.

Even as reports of this type of injury have risen, federal courts have narrowed the ability of workers to gain disability compensation under the Americans with Disabilities Act (ADA). Wednesday's decision is consistent with those trends, attorneys say.

"Decisions we have seen recently really narrow what (the courts) classify as a disability," said Barry Hinden, a partner with Los Angeles-based Hinden Gruskin & Aguirre, which represents employees in workers compensation suits.

Judges rule on technicalities
In a 2-1 decision Wednesday, a panel of 9th Circuit judges ruled that a part-time reporter was not owed damages after a newspaper dismissed her. The dismissal followed years of employment, therapy and ultimately physical injury related to her work on a computer keyboard.

A doctor had barred the reporter, Jacalyn Thornton, from doing more than a half-hour of intensive typing or just 5 minutes of handwriting per day. The court ruled that because she was able to do things other than type, her injury did not give her job protection under federal disability law.

Much of the judges' decision was based on issues specific to Thornton's case and the way it was argued in court. But the majority ruling nevertheless stands as a potential roadblock to anyone who would argue in court that the inability to use a computer is a substantial legal hindrance to living in the modern world.

"Despite these restrictions on keyboarding and handwriting, Thornton was able to perform a wide range of daily tasks," the majority wrote. "Thornton was able to perform a wide range of manual tasks, including grocery shopping, driving, making beds, doing laundry and dressing herself."

Attorneys for employers downplayed the significance of Wednesday's ruling, since it did fall in line with previous decisions favoring defendants or employers.

"The courts have been very cautious in deciding whether a disability claim can be brought under the ADA," said Tom Makris, a labor and employment specialist at the law firm of Pillsbury Winthrop, who primarily represents employers.

Median number of missed workdays as a result of specific occupational injury or illness, 1999.
Nature of illness
or injury
Median days
Carpal tunnel syndrome 27
Fractures 20
Amputations 18
Tendinitis 9
Multiple traumatic injuries 7
Sprains, strains 6
Heat burns 4
Bruises, contusions 3
Cuts, lacerations 3
Chemical burns 3
Source: Bureau of Labor Statistics
For example, in determining whether a disability significantly limits a major life activity, the courts have required specific details about the kinds of tasks an injury prevents. Claims regarding a general inability to "work" have typically been rejected, he said.

As a result, the ruling may not prevent future cases from workers injured by repetitive stress claiming an inability to type, assuming more evidence is provided regarding the kinds of jobs the plaintiff can no longer perform. Under the ADA, the burden of providing such evidence falls to the plaintiff, and the court said Thornton had not provided that specific proof.

"This is the kind of case where well-presented evidence would have made a huge difference," Makris said. "But the plaintiff did not come forward with significant job market analysis."

The outcome of Thornton's case partly rests on technicalities. She did not specifically argue in front of the appeals court that she was no longer able to perform specific parts of her job, but only that she was substantially limited in general work and life activities. Although those distinctions might be lost on a layperson, they affected the way the judges analyzed her arguments.

Nevertheless, the court's decision shines a light on the way computer use is viewed under federal disability law. The court noted that Thornton was unable to use a computer--or even to write by hand--for any significant length of time but said this did not rise to the level of a legal disability.

The dissenting voice
In a passionate dissent from the majority opinion, Judge Marsha Berzon argued that this idea ignored modern realities, which have changed since the ADA was passed. Use of a keyboard--and certainly the ability to write by hand--needed to be viewed by the legal system as a critical part of modern life, she said. If not, the ability to protect children inside the educational system, or to ensure that people could take tests on an even footing, would be harmed, she added.

"It should not be necessary to prove that the ability to use one's arms and hands to produce, by computer (or by hand-writing), written communications and records is a manual skill of enormous importance in our literate and technological society, and thus 'in the life of the average person,'" Berzon wrote.

Lawyers do say that the Thornton case and others like it are just one part of a complicated disability legal system.

Many such cases are dealt with solely under workers-compensation law rather than under federal disability rules. In those cases, employees have been more successful. Political fights over the level of benefits remain, including a sometimes bitter policy battle now going on in California, where employees are more likely to succeed.

Furthermore, many disability cases of this kind have moved to state courts. Particularly in California, state laws make it much easier for injured employees to prove that an injury is a "limitation" on their work or life activities.

Politics has also come into play at the federal level, where the government is wrestling with delays over drafting standards for workplace ergonomics, an effort aimed at protecting employees from RSI. President George W. Bush in March repealed proposed standards put forward by the Occupational Safety and Health Administration (OSHA). The agency is now conducting public hearings to revise its proposals.

Makris said the revision process underscores the deep uncertainty that exists over how best to address ergonomic injuries in the workplace.

"It's interesting to see the questions that are being addressed in these public hearings," he said. "They are, one: What is an ergonomic injury? Two: How can we determine whether an ergonomic injury was caused by a work-related activity? These are very basic questions that show the regulators do not have a very good handle on the problem."

Regardless of the technicalities of Thornton's lawsuit, other RSI sufferers dismissed the ruling as ill-reasoned.

"That's really laughable as far as I can tell," said Herb Swords, a former paralegal who has suffered from RSI since 1995. Swords is a volunteer with the East Bay RSI Support Group in Berkeley, Calif.

"When they say that it wasn't a disability, what do they mean--that it doesn't exist? So in other words, you can do other jobs?" Swords asked. "Well, it's hard to believe...If you can't type, what that means (is) there's a lot of other tasks you can't do with your hands."

News.com's Gwendolyn Mariano contributed to this report.

 

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