Personal Injury Attorney Ben Schwartz explains how you can have a workers’ comp claim as a result of a repetitive use injury due to your job, without actually getting an actual injury on the job.
Hi, I’m Attorney Ben Schwartz,
Today we are going to take a viewer question from Kathy in Rehoboth Beach, Delaware. Kathy wrote in she said, “I have really bad carpal tunnel in both hands. My orthopedic asked me if I’m going to make a workers’ comp claim. How can it be a workers’ comp when I didn’t get in a workers’ comp accident?”
I think this is a really good question Kathy, I really appreciate you writing in with us. You can have a workers’ comp claim from an injury even if the injury didn’t result from an accident on the job. So, like normally a workers’ comp claim is going to be based on injuries that you sustained in an accident that occurred while you were working, but not always.
You can have what’s called a repetitive use injury and it can be something that does not come from a specific accident or a specific incident. It can be the type of injury that you get overtime. I’ll give you a perfect example, we had a case one time where our client was basically a cleaning woman and she cleaned windows. She would take the cleaning cloth and spray the cleaning spray on the cloth and then she would use her hand to hold the cloth and wipe the windows.
This is what she did all day and what happened was, in her wrists she got carpal tunnel syndrome. She would never have gotten the carpal tunnel syndrome if she hadn’t been wiping the windows all day. It’s from that repetitive motion over and over thousands of times a day over days, weeks, and years. It builds up scar tissue and it builds up small tears and the soft tissue complexes and what you end up with is an injury that did not result from an actual incident. It resulted from wearing away over time. That can be a legitimate workers’ compensation case.
I’ll give you one example of how it’s different, it’s actually better. It’s easier if you have one of these types of cases, oftentimes than a normal accident. Here’s one example of how it’s different. If you are in an accident on the job and you sustained an injury when you go before the board, before the industrial accident board in Delaware or wherever you are, you have to prove that if it had not been for that accident you would not have your injury. That is called the but-for test, but-for this accident, I wouldn’t be suffering from this injury in a repetitive use type of situation where you bring a workers’ comp claim. At least in Delaware, you don’t have a but-for standard. You have a different test it’s a substantial contributing factor test.
So, we are going to have to prove that those repetitive movements that you make on the job every day were a substantial contributing factor meaning part of the cause a substantial part of the cause in bringing about that injury it’s a lowered standard. It’s an easier thing to prove than the but-for test. So that’s one way that these types of cases are different. It doesn’t mean it’s not a case in fact, it is a case.
I would encourage you if you have one of these types of repetitive use injury, I would encourage you to contact an attorney who handles workers’ compensation claims in the county and state where you were injured on the job and learn more about your legal rights. Find out if you have a viable workers’ comp claim. I think it’s a great question Kathy, I appreciate you writing in and asking that question. I hope if you are watching this video you found it informative and helpful and entertaining. Maybe if you know who has this type of injury you can share it with them and help them to learn more about their legal rights. I’m attorney Ben Schwartz, if you have a topic question or an idea for a video like this, please send me an email.
Thanks for watching!