‘Garbage in, garbage out’ says court about OSHA injury logs
April 2, 2012 by Fred HosierPosted in: ergonomics, Injuries, new court decision, OSHA news, Special Report
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A federal court case regarding a $900 fine against a company for omitting an injury from its OSHA 300 log has resulted in sharp criticism of OSHA’s recordkeeping standard. See if you agree with the court:
First, the background on the case.
It involves Caterpillar Logistics Services which sells parts for tractors, earth-moving machines and other products. An employee, “MK,” worked in the packing department. Packing department workers took parts from totes that usually weighed ten pounds or less but occasionally weighed up to 50 pounds and put them in shipping containers. On a normal day, each employee filled 12 to 14 shipping containers from about 650 totes.
About five weeks after starting work, MK felt pain in her right elbow. After another five weeks, MK visited the company clinic. The staff doctor said MK had medial and lateral epicondylitis: painful swelling of the ligaments and tendons around her elbow. Medial is commonly known as golfer’s elbow; lateral is tennis elbow.
MK didn’t work for the next three months. While she was off work, she was diagnosed with epicondylitis in her left arm, too. However, in the time she was off work, her condition improved. When she returned to work in the packing department, the improvement stopped. She was transferred to another position, and she recovered from the golfer’s and tennis elbow.
Caterpillar had to decide whether to list MK’s injury on its OSHA 300 log. The National Institute for Occupational Safety and Health and the American Medical Association both say repetitive motion plus force can cause epicondylitis, but repetitive motion alone can’t. For that reason, the staff physician concluded that the injury couldn’t be work-related because the necessary force wasn’t present in MK’s job.
Just to make sure it was doing the right thing, Caterpillar gathered an internal review panel of five members, three of whom were board-certified in musculoskeletal disorders. They agreed with the doctor’s decision.
OSHA fined the company $900 for failing to log a work-related injury. On appeal, an administrative law judge (ALJ) agreed with OSHA. The full Occupational Safety and Health Review Commission (OSHRC) declined to review the ALJ’s decision.
The physician who testified on OSHA’s behalf said the combination of moderate repetition plus rotational movement of the forearm must have caused MK’s condition. However, there was no explanation on why no other Caterpillar workers suffered from epicondylitis. The packing department had been running the same way for 10 years with 30 employees, for 300 person-years of experience.
When the 7th Circuit court took up this case, it said the big consideration missing from the ALJ’s opinion was Caterpillar’s 300 person-years of experience in its packing department. Experts say epicondylitis affects about 1% to 2% of the general population. At that rate, Caterpillar should have had three to six cases among its staff, yet it only had one, the court noted. And if conditions in the packing department contributed to epicondylitis, the injury would have occurred more often than average among the workers.
What does ‘contributed to’ mean?
This is where the court’s opinion on OSHA’s recordkeeping standard comes in.
The 7th Circuit notes OSHA defines a death, illness or injury as work-related if “the work environment either caused or contributed to the resulting condition.” According to the court, neither the regulation nor any decisions from the U.S. Department of Labor define what is meant by “contributed to.” That could mean “increase the probability, above background levels [or] by a statistically significant amount.”
“What is certain is that the agency must choose among these possibilities,” the court wrote. In other words, it wants a clarification of “contributed to” in OSHA’s definition of a work-related injury.
So, in the Caterpillar case, it’s not possible to tell whether the company’s experience with a lack of reports of epicondylitis among its packing department staff is significant or not, according to the court, because of the lack of definition of “contributed to.”
And regarding OSHA’s recordkeeping standard, the court had this to say:
“What the work-relatedness requirement is doing in [the standard] is a puzzle. The Secretary [of Labor] suggested that the injury log’s function is to help the Department determine which occupations are hazardous, so that it can concentrate enforcement resources on them and propose regulatory changes that may reduce risks to employees. These purposes can be served, however, only if the log contains all injuries. Then the Department can compare rates of injury in a given job with the background rate in the general population … The Secretary can get no more information out than the employer puts in: GIGO (garbage in, garbage out) … An elaborate board of inquiry at Caterpillar was followed by the Department’s investigation, a four-day trial, an opinion by an ALJ, submissions to the Commission, and then briefs and arguments in a court of appeals. Because saving all of this time and expense might simultaneously improve the log’s usefulness, the Secretary may want to take another look at 1904.4(a) (the recordkeeping standard).”
The 7th Circuit threw out OSHA’s fine and remanded the case “for proceedings consistent with this opinion.”
So it seems now a definition of “contributed to” for work-related injuries will result from this case.
What do you think about the court’s opinion? Do you agree that the language in OSHA’s standard is vague when it comes to determining what is and isn’t a workplace injury? Would you welcome a definition of “contributed to,” or do you think that just might make things worse when it comes to filling out your OSHA injury logs? Let us know what you think in the comments below.
(Caterpillar Logistics Services Inc. v. Solis, United States Court of Appeals, 7th Circuit, No. 11-2958, 3/20/12)
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Tags: Caterpillar Logistics Services, contributed to work-related injury, musculoskeletal disorders, OSHA injury log, tennis elbow
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April 2nd, 2012 at 4:02 pm
This and other written of legal and technical standards, in part if not whole, of both the technical process of government writing, and the technician’s understanding of the standards and rules developed. Federal writing is confusing and not reader friendly. There is a actual course offered for this type of writing! Standards read have, at least, one point of confusion; confusing to read! This should not be the case after the time of fact finding process and research. For myself, my opinion is that the government writing and the writing and development process needs revamping to provide readable material needing little interpretation. As it stands now, the process producing an OSHA standard takes allot of time and expertise within the area the writing is about. The redevelpment may save both the government and individual money and time when the interpretation and understanding could save lives or prevent expensive court costs. The fact that, “…a definition of “contributed to” for work-related injuries,” needs to be defined lends itself to this conclusion.
April 3rd, 2012 at 7:14 am
If OSHA would clearly deifine a lot of the L&I rules for the work place they would be doing a better service to most employer and employees. The way rules read currently leads to interpretation, interpretation leads to confusion, and confusion leads to injuries. Knowing and undersatnding what the rules are, how to apply them, and that everyone is on the same page keeps things simple. In most cases the safest way is the easiest way.
Example: Do not run with scissors.
There is no interpretation. The rule is simple and clear.
April 3rd, 2012 at 7:58 am
The current OSHA recordkeeping rules are ill-suited to handling injuries/illnesses like the one discussed here - long-term issues where the causal factors involved are many, varied, and not all work-related. The standard approach we usually see right now is to look at each case in a vacuum, and if there is any possibility that work caused/contributed even the least little bit to the case to consider it work related. Worker’s Comp, if anything, takes this concept even further: See the article on a teacher being awarded WC b/c he was talking on a work phone off duty when he was shot - no causality at all!.
Caterpillar’s approach, looking more at the big picture to see if the one case appears to represent represent something significant above “background”, makes far more sense - which of course means OSHA will hate it. But what about the workplaces that don’t have any large-scale statistical info? It would be better if the definition centered on thinsg that can be assessed on a case-by-case basis - i.e., whether work was the “primary” contributor or at least a “significant” contributor. We need to be able to weed out cases where personal lifestyle choices and/or underlying personal medical issues represent the biggest part of a problem but the case still gets chalked up to work because the workplace may have “contributed” in some even very small way (I vividly recall a case where a worker compalined to me that hand pain “work was causing” from using a computer keyboard [at a very well laid-out workstation] was “interfering” with playing guitar and drums for several hours every night in a band!). It simply can’t continue to be a case of “worker comes to work and worker experiences pain, so the pain must must considered work-related”.
April 3rd, 2012 at 8:18 am
It seems that in the case presented the wording was used to support OSHA’s interpretation against the company’s. Overall I think it’s a good thing to define “contribute to” using data to prevent vague assumptions and protect responsible companies instead of punishing them.
April 3rd, 2012 at 8:32 am
Equally confusing are the answers that given when you seek assistance from OSHA (or state equivalent) to determine the proper course of action to take when faced with vague wording in a standard. Circular reasoning if the usual response that is supposed to clear things up. “What does this mean?” “What does the standard say?” “It says this” “That’s what it means.” “Ok, but what does that mean?” “What does the standard say?”. Clearer, plain english writing of the standards would greatly aid in eliminating the confusion and uncertainty that exists in their present form. While I appreciate that standards are written by lawyers for lawyers, what is lost is that the end-users of the standards are NOT lawyers. I write company policies and procedures based upon OSHA standards, and take great pains in writing them in language lay-people can understand. But, when even OSHA cannot clearly define what phrases such as “contributed to” mean, it is impossible of someone on the shop floor to know the proper course of action to take. Sadly, this particular source of confusion isn’t knew, recordkeeping has been around a long time, and this isn’t the first time this issue has raised it’s head.
April 3rd, 2012 at 8:35 am
I think osha made the right choice
April 3rd, 2012 at 8:39 am
The 7th Circuit Court is to be commended for its action and decision. Catepillar went far beyond the “extra mile” to do their “due diligence”!
Given these statements of fact, the impartialness of the purpose of an ALJ needs to be reviewed. Is there a proverbial “report card” on the decisions made by the ALJ system (Federal and State levels)? Let’s not give OSHA and the States the credit card to spend millions on a study! But, let’s do our “due diligence” as the “governed” to confirm that a proper job is actually being done by this branch of the government!
April 3rd, 2012 at 9:52 am
When incidents happen and employees are provided medical treatment, it is pretty much a recordable injury. Looks like the company spent too much time and money in substantiating whether the epicondylitis could happen from the job. I don’t approve the fine, but it wasn’t something to take it to the court.
April 3rd, 2012 at 10:05 am
If she missed 3 months, they should have recorded it. That’s pretty much a no-brainer.
April 3rd, 2012 at 10:14 am
Having taken over our company’s safety program, I had to go back and fix several errors in our company’s 300 log for several years back. To ensure that I correctly logged, and collected supporting documentation, on several unique injuries, I contacted OSHA for their guidance since we are a small business and do not have the luxury of retaining high-cost lawyers. The OSHA personnel I talked to were very helpful, except that the three persons I talked to had three separate interpretations of what should be logged.
The Governments confusion about their interpretations of their own regulations is not unique to OSHA. We are going through an EEOC audit and are experiencing the same issues of how the EEOC/DOL regulations read and what how auditors interpret the regulation. Can you believe the law says we cannot ask questions about race when conducting interviews of job respondents, but the EEOC wants us to track the race of job respondents?
15 years ago we were able to run our company with a part-time HR clerk. Now, just to keep up with Government mandated regulations, we have a staff of three full-time HR professionals, and we are now a smaller company. Having to spend resources interpreting OSHA standards is just one example of how big Government is hurting small business. I’m not saying we should NOT have oversight - just that the regulations and requirements need to consider cost impacts to small businesses.
April 3rd, 2012 at 10:45 am
I am most definitely NOT in favor of a more specific definition. It has always been understood that an employer decides when there was a workplace injury. And the most they should be able to fine is a recordkeeping violation. It really comes down to a difference of opinion in cases of soft tissue injuries.
April 3rd, 2012 at 10:47 am
IF they define “Contributed To” then EVERY injury an employees has will likely be recordable.
I stubbed my toe this morning while getting out of bed…I wouldnt have been getting out of bed except I was going to work…therefore work contributed to my injury.
April 3rd, 2012 at 10:51 am
personally, I feel “Contributed to” should be removed completely. Work either caused it or didnt. How much contributed to do we need? 1% ? 90%? “Contributed to” is dangerous thing to mess with.
April 3rd, 2012 at 11:09 am
We’re in the Safety field, not Doctors. this company did all the right things. It was the opinion of a medical Doctor and 3 board-certified in musculoskeletal disorders professionals that this injury was not work related. Does this mean Safety Professionals or businesses need to start second guessing a Doctors opinion?? Wow, I’m speechless…
April 3rd, 2012 at 11:11 am
Whoops, I meant to say if the court had not ruled this way, would this mean Safety Professionals or businesses need to start second guessing a Doctors opinion?? Wow, I’m speechless…
April 3rd, 2012 at 12:46 pm
All standards must be applicable. In order to be applicable these standards must meet a “smell’ test. The smell test must be if the standard is definable and able to be applied in the real world. This is where the confusion arises. These standards are written as to be widely applicable. The wider the better for OSHA. But, these standards are not for OSHA they are for the employee, his safety. The court was correct in trying to “nail-down” the exact definition of contributing. OSHA wants this to mean anything for application/citation purposes. The employee and the employer needs the definition specific in order to understand and apply. Herein lies the “rub.” Until we all, OSHA, employer and employee, agree what the standards are written and enforced to achieve, we will continue to need the court to demand the definition of the word(s).
April 3rd, 2012 at 1:01 pm
I believe the court is correct in their findings that a better definition of “contributed” is required. The term as it now stands makes a back injury with a trigger as insignificant as bending over to pick up a paper clip even though the employee may have been moving their household goods all weekend and lifting improperly. Alaska’s legal system has recently found that a “significant contribution” means 51% or better and that standard is what is applied to workers’ compensation claims. I believe that same standard should be applied to OSHA recordkeeping; a workplace injury should be an injury that occurred primarily due to work.
As for recording ALL injuries. This will be problematic for employers as many employees don’t want to report any injury that they don’t have to; especially if it may mean they will not be allowed to work. A resource OSHA could use to determine frequency of serious injuries is the trauma registry and get some teeth added to penalize hospitals/clinics/medical offices that don’t enter data or enter it incorrectly.
April 3rd, 2012 at 3:07 pm
OSHA rules
April 4th, 2012 at 9:35 am
We don’t need a clearer definition. Compensabiltiy and Recordability are different and should be different. If OSHA were to define “contributed to” we would probably end up reporting every injury that was REPORTED at work, instead of Injuries that were CAUSED by work. For recordkeeping purposes those two things are vastly different.
Take the hearing tests for example, Did the 8 hr TWA of 85 decibels with ear protection “contribute to” the threshhold shift and employee experienced, or did the 5000 WATT stereo in the car the employee rides to and from work every day without hearing protection “contribute to” his hearing loss?
I look at that sort of situation and I say, his hearing shift is probably due to the fact I can hear his stereo from his car when he pulls into work from within the plant… his hearing loss was not work related. I have information that even a doctor may not have…
Here is another “hypothetical” example. An individual walks into the occupational med clinic. He has severe back pain, the doctor confirms a slipped disk via X-ray. The person says that he hurt his back earlier in the day at work. Surely this is a work related injury. My company receives a work comp bill. I should record this definitely, right? Yes, except for the fact this person worked for our company for a few months and his employement ended a year ago. He was currently drawing unemployment.
So if we were to go by what a claimant says in a doctor’s office or emergency room… we would likely be recording a lot of things that are not WORK related. But the doctor was CERTAIN it was related to work…
1. Remember, Compensability and Recordability are not the same.
2. What a claimant says to a doctor, believe it or not, may not be the gospel truth.
3. Frequently the only thing a doctor has to go on is the claimant’s version of events, because we in industry frequently do poor investigations into claims of Injury.
4. Just because an…