Musculoskeletal Disorder Lawyers

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 What Is a Musculoskeletal Disorder?

Musculoskeletal disorder, or “MSD,” is a broad term that covers a wide range of bodily injuries and conditions. The name refers to the fact that MSD disorders involve both the skeleton and the muscles together. It can also involve nerves, tendons, joints, cartilage, and spinal discs. Examples of MSD include conditions that are not related to work and some that are. Those that do not arise directly from workplace trauma are illnesses such as muscular dystrophy, fibromyalgia, and arthritis.

Work-related musculoskeletal disorders (MSD) are conditions in which:

  • The work environment and performance of work contribute significantly to the condition; and/or
  • The condition is made worse or persists longer due to work conditions

Examples of work-related MSD resulting from trauma in the workplace are:

  • Repetitive motion Injury
  • Repetitive stress injury
  • Carpal tunnel syndrome
  • Overuse Injury
  • Thoracic outlet syndrome
  • Tension neck syndrome
  • Back pain from standing or sitting in one place too long
  • Upper body trauma from heavy lifting (i.e. shoulder or elbow injuries)
  • Soft tissue disorders
  • General joint or nerve pain

While the details of the illnesses may vary, the cause for each workplace illness is the same: repetition and stress. Muscular fatigue overcomes the body’s recovery system.

Examples of work conditions that may lead to MSD include:

  • Routine lifting of heavy objects
  • Daily exposure to whole body vibration
  • Routine overhead work
  • Work with the neck in chronic flexion position
  • Performing repetitive forceful tasks

MSD claims make up about 35% of all work-related injury claims that require the worker to miss at least one day of work. On average, workers with a musculoskeletal disorder miss 12 days of work a year due to the injury (the average for all other types of injuries is only 9 days). Musculoskeletal disorders are associated with high costs to employers due to absenteeism, lost productivity, increased health care costs, disability costs, and worker’s compensation costs.

The Institute in Medicine estimates the economic burden of MSDs (as measured by compensation costs, lost wages, and lost productivity) are between $45 and $54 billion annually.

Who is at Risk of Developing a Musculoskeletal Disorder?

Workers who are prone to musculoskeletal disorder disorders include:

  • Construction workers
  • Janitors
  • Typists
  • Factory workers
  • Secretaries
  • Administrative assistants

Are There Any Legal Remedies for MSD?

Certainly. If your employer has failed to put into practice work protections such as those described above, it may be possible to sue your employer.

What Are Common Practices That Can Help Avoid Creating a Workplace MSD?

A three-tier hierarchy of controls is widely accepted as an intervention strategy for reducing, eliminating, or controlling workplace hazards. The three tiers are:

  1. Become educated about ergonomics Ergonomics is the science of designing the workplace and job demands to match the capabilities of the workers. The goal is to reduce stress and eliminate injuries and disorders associated with the overuse of muscles, bad posture, and repeated tasks. A workplace ergonomics program can aim to prevent or control injuries and illnesses by eliminating or reducing worker exposure to MSD risk factors, using both engineering and administrative controls (discussed below). Risk factors include:
    • Awkward postures
    • Repetition
    • Vibration
    • Temperature extremes
    • Compression
    • Glare
    • Inadequate lighting
    • Duration of exposure to the risk
  2. Use of engineering controls Design the jobs at the workplace to take account of human capabilities and limitations. Some examples of practices that help are:
    • Change the way materials, parts and products are moved. For example, use assist devices to relieve heavy load lifting and carrying tasks. Put slotted hand holes on boxes that require manual handling.
    • Change workstation layout, which might mean using adjustable workbenches and desks, or putting tools and materials in places that are within short reaching distance.
  3. Use of administrative controls (changes in work practices and management policies)
    • Administrative controls reduce the risk of MSD but do not directly eliminate or reduce workplace hazards. Administrative controls can be helpful as temporary measures until engineering controls can be put into place, or in situations where engineering controls are not technically feasible. Some examples include:
      • Reducing shift length or limiting the amount of overtime
      • Changes in job rules and procedures such as scheduling more breaks to allow for rest and recovery
      • Rotating workers through jobs that are physically tiring
      • Training workers to recognize risk factors for MSD and instructions in work practices and techniques that can help avoid MSD
      • Use of personal protective equipment (PPE). Examples include respirators, ear plugs, safety goggles, chemical aprons, safety shoes, and hard hats

What Would Be the Legal Theory of a Claim Against an Employer for MSD?

Employees who develop an MSD at work have two methods of recovering from their employers: a civil lawsuit, or a workers compensation claim (discussed below).

The most common legal theory used against employers for MSD is ”negligence”. Negligence is the legal theory that allows injured persons to recover for the carelessness or recklessness of others.

There are four requirements to prove a negligence case:

  • Duty It is essential to prove that there was a duty to act with “reasonable care.” What constitutes reasonable care will vary depending on the circumstances, and judges and juries take a relatively common sense approach to decide if someone has acted sufficiently carefully or not. Here, employers are commonly required to protect their workers from foreseeable injury.
  • Breach The person or company failed to act with reasonable care. This may be as direct as having failed to put ergonomic, engineering and/or administrative controls in place.
  • Causation The defendant’s behavior must be what caused the injury.
  • Damages Some damage must have occurred. That could include medical bills, hospital bills, lost days of work, or more. The jury will total up the actual out-of-pocket expenses the employee has had. If the company was not just careless but was actually reckless, a monetary award to cover the damages can include the employee’s pain and suffering.

What About Workers Compensation?

As mentioned above, in addition to the remedy of directly suing an employer over MSD injuries or conditions in civil court, an employee can seek worker’s compensation. Worker’s compensation is a state-mandated insurance program providing compensation to employees who sustain on-the-job injuries.

The employee does not have to show the company did anything wrong – monthly payments are sent no matter who was at fault. Employees must make a choice: they cannot collect workers compensation and also sue their employers for additional financial damages. A lawyer can help determine which methodology would be best in a specific case.

In a successful workers compensation claim, employees will be granted replacement income, payment of medical expenses, and the cost of physical rehabilitation Employees are typically given compensation either over long-term installments or in one lump sum payment.

In order to qualify for worker’s compensation, an employee must have an employee-employer relationship and must demonstrate that their injuries were work-related.

Do I Need a Lawyer for Help with MSD Claims?

Musculoskeletal disorders or injuries can sometimes be debilitating. You may wish to hire a workers compensation lawyer if you need help filing a claim based on MSD (Most workplace injury lawyers do work in both fields).

Your attorney can evaluate the probabilities of success on a claim, can help you determine whether to sue in court or file a workers compensation claim, and can guide you through the process and help you recover damages. If you need to attend any hearings or court meetings, your lawyer will be able to assist and represent you as well.

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