Ergo, Lawsuits

Copyright 1999 Wall Street Journal
October 8, 1999

Hardly a day passes, it seems, without news reports of another wave of lawyers and regulators rolling over yet another industry. Famed New York attorney David Boies, for instance, last seen majestically representing the U.S. against Microsoft, will now be a simple ambulance chaser, suing HMOs as a plaintiffs lawyer. These sieges sometimes give the impression of being bolts out of the blue. But in reality they are the result of painstaking legislative or regulatory groundwork, often completed more or less behind the scenes. We found three such litigation bricklayers on the floor of the U.S. Senate yesterday--Ted Kennedy, Tom Harkin, and Paul Wellstone. The Democratic Senators threatened to talk and talk until Republicans dropped legislation that might have shut down the latest plaintiffs' sandbox--ergonomics.

That's right, ergonomics. The term ergonomics, as most keyboard mavens know by now, refers to the craft of designing workplace equipment, including computers, to minimize health problems or injuries. Lately ergo injuries, real or imagined, have become something of an epidemic. And any day now, the Occupational Safety and Health Administration, a subsection of the compulsively intrusive Labor Department, is set to issue new ergonomic standards for workplaces across the nation. The Republicans in the Senate yesterday were asking for a moratorium on application of those regs until the National Academy of Sciences, already assigned to the task, completed a big study of the matter next year.

Seems like a sensible idea, given the vagaries of ergo maladies. But the Democrats killed it, leaving OSHA and the lawyers always found in the agency's slipstream free to launch the attack. And a broad attack it will be.

For starters, consider the scope of the OSHA's new mandate, which covers offices and workplaces where "a work-related musculo-skeletal disorder is reported." Any company that experiences this "trigger event," as OSHA calls it--and what office doesn't, by now?--must launch a formal ergonomics program, create alternate jobs for employees, and cover six months' rehab pay. And then guarantee the afflicted the same job and seniority that he, or she, held formerly.

OSHA also allows an impossibly wide range of symptoms to qualify a worker for redress. "Numbness," "pain," "burning," "tingling," "aching" and "stiffness"--all these are listed as signs of ergonomic injury. In other words, if the regs stand, just about any employee is on his way to proving he deserves compensation.

OSHA has argued that compliance will cost $20 billion--spread over a few years. The Labor Policy Association, a watchdog group that represents those businesses affected by the new regs, says the bill will be $20 billion per industry. No doubt OSHA's numbers exclude punitive damages.

The workers comp system to some degree will continue to shield employers from suits by employees. Manufacturers of equipment, though, have long been vulnerable. With its concrete list of symptoms, OSHA is giving tort-sympathetic judges a basis to wave the inevitable plaintiffs suits into their courtrooms.

All this is particularly disappointing when you consider the efforts businesses are already making to help employees cope with the modern workplace. Even without the cattle prod of regulations or lawsuits, companies have willingly supplied keyboard pads, expensive chairs and ergonomic consultants to minimize these maladies. And why wouldn't they? Corporations already pay a high cost in productivity and turnover when they lose a worker to carpal tunnel syndrome or a bad back. By dropping this new legal burden on them, Washington is forcing the same businesses to pay double. We know where this story ends: with jobs moving outside the United States, land of litigious crybabies.

The outcome here depends on whether Congress can check the thrusting regulators. Senate Majority Leader Trent Lott yesterday promised to reintroduce the ergo moratorium later this fall. We're accustomed by now to the Democratic Party seeking new ways to redistribute income through court-driven punitive-damage awards. But let's openly debate these matters in a legislative body, rather than let an agency like OSHA wave another industry into the lawyers' vaults.

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