Judge upholds OSHA recordkeeping citation: MSD is work-related

Occupational Safety and Health Administration) is describing as the first decision of its kind, Administrative Law Judge Patrick B. Augustine of the Occupational Safety and Health Review Commission recently upheld an OSHA recordkeeping citation issued against Caterpillar Logistics Services, Inc. for failing to record a musculoskeletal disorder (MSD) case on the OSHA 300 Log that Caterpillar contended was not a work-related injury. The employee in the case had been diagnosed with right elbow epicondylitis, commonly known as “tennis elbow,” for which medical treatment beyond first aid was provided, and the case resulted in job transfer and days away from work. The employee’s job duties had included receiving and unpacking totes, scanning items, packing shipping boxes, and handling from 2,000 to 6,000 parts during a shift. In making its decision not to record the case, the company relied upon an ergonomic evaluation of the injured employee’s work area and an assessment by its company physician concluding that there were unspecified “non-occupational factors which are primarily responsible for this diagnosis.” At trial, OSHA’s expert witness, a physician and university professor with significant expertise in MSD cases, testified that it was his professional medical opinion that there were sufficient risk factors in the employee’s job duties to conclude “within a reasonable degree of medical certainty” that the case was work-related. Administrative Law Judge Augustine first explained in his decision that for a case to be work-related for purposes of OSHA recordkeeping, the “employee’s work activities do not have to be the cause of an injury or illness, but rather a cause.” He then found that the company’s ergonomic evaluation of the employee’s work station had been “deficient,” as it did not include an interview of the employee, an examination of the postures, repetition, and force necessary to move parts, or consideration of the various risk factors related to epicondylitis. The Judge pointed out that the company’s assessment was conducted in one day and the assessment report was just 2 pages and 23 sentences long. He also noted that the company physician was not able to establish any likely cause for the employee’s epicondylitis, such as sports or hobbies performed outside of work. While Judge Augustine emphasized that the burden of proving that an MSD case is work-related remains with OSHA and “the court is not implying any reversal of the burden here,” the decision appears to require companies to expend considerable effort and resources to determine whether an MSD case is in any way related to work, only to have that determination subject to challenge after the fact by OSHA and its medical experts. Simply relying upon a single assessment and determination by the company’s doctor may not be sufficient and risks later citation if OSHA disagrees with that doctor’s determination. Moreover, upon implementation of OSHA’s proposed new requirement to identify MSD cases in a separate column on the OSHA 300 Log of Occupational Injuries and Illnesses, it is expected that the Agency’s scrutiny of employers’ recording of, and responding to, MSD cases will increase. OSHA seeks comments on proposed revision to occupational injury and illness reporting requirements On a similar note, OSHA announced on June 22, 2011, a proposed revision to the Agency’s current regulation that requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. Under the proposal, employers would be required to report to OSHA any work-related fatalities and all in-patient hospitalizations within eight hours, and work-related amputations within 24 hours. Reporting amputations is not required under the current regulation. The proposal also includes a planned update to the coverage provisions of the OSHA recordkeeping rules that would identify the partially exempted industries using more recent injury and illness data and the North American Industry Classification System (NAICS code) instead of the currently used Standard Industrial Classification system (SIC code). Comments on the proposal, including responses to specific questions about issues and potential alternatives, may be submitted to OSHA by Sept. 20, 2011. The proposal text and preamble can be accessed at http://www.gpo.gov/fdsys/pkg/FR-2011-06-22/html/2011-15277.htm. For more information on OSHA or the information noted in this post, get in touch with Mind Your Business, Inc.]]>