OSHA had fined Caterpillar Logistics for not recording an employee’s work-related injury. After bouncing around the courts for a few years it looks, for now at least, that OSHA has lost this one.
A Caterpillar employee, MK, developed epicondylitis — inflammation of one or more tendons near the elbow. (One type of epicondylitis is commonly referred to as “tennis elbow.”)
MK worked in the packing department where workers removed items from containers and placed them in boxes for shipping. The job required repetitive hand movements and turning of the wrists, elbows and shoulders.
Guidelines from the National Institute for Occupational Safety and Health and the American Medical Association say epicondylitis is caused by repetitive motion plus force (weight or impact), and that turning plus force can also cause it, but repetitive motion alone does not.
While MK’s job required repetitive motion and turning, it didn’t involve force.
Caterpillar convened a five-person panel which included three board-certified specialists in musculoskeletal disorders (MSDs) to review the case.
The panel concluded work in the packing department couldn’t have caused MK’s epicondylitis.
OSHA fined Caterpillar $900 for not recording an employee’s work-related injury. The company appealed, and an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) upheld the fine. The full OSHRC declined to review the case, so Caterpillar appealed to the Seventh Circuit Court of Appeals.
Among a number of things the Seventh Circuit opined about this case, it said the big consideration missing from the ALJ’s opinion was Caterpillar’s 300 person-years (10 years with 30 employees) of experience in its packing department without a single, similar injury to MK’s.
Epicondylitis occurs in about 1-2% of the population, meaning Caterpillar’s packing department should have had three to six cases. And, if conditions in the packing department contributed to the condition, it should have had more cases than average. Instead, it had only one.
So the Seventh Circuit remanded the case to the ALJ for further consideration, taking into account Caterpillar’s lack of epicondylitis cases among its packing workers, other than MK.
Noting it would take Caterpillar’s injury track record into consideration, the ALJ readdressed the case. However, the ALJ still decided the company should have recorded the injury, and therefore it should be fined $900.
The ALJ assigned more credibility to an expert presented by OSHA than to the five-member panel convened by Caterpillar. OSHA’s expert said it was possible for epicondylitis to be caused under the conditions present in Caterpillar’s packing department.
Once again, Caterpillar appealed to the Seventh Circuit.
No third crack at it
Upon receiving this case for the second time, the appeals court noted the ALJ decided to accept the OSHA expert’s explanation despite the fact it was contrary to otherwise accepted medical guidance about epicondylitis.
And on top of that, the ALJ also didn’t give much credit to Caterpillar’s record of a lack of epicondylitis cases.
The Seventh Circuit took a dim view of the ALJ’s second opinion: “Such a heads-I-win-tails-you-lose declaration does more to make a witness look like a quack than it does to support reliance on the witness’s approach. … We are surprised the ALJ would echo such a position … ”
Enough is enough, said the court. OSHA “is not entitled to a third crack,” the court wrote before declaring that the $900 citation is thrown out.
The first time the Seventh Circuit addressed this case, it had criticism for OSHA’s definition of a recordable, work-related injury, one in which “the work environment either caused or contributed to the resulting condition.”
Specifically, the court had a problem with the phrase, “contributed to.” It said it didn’t have enough information to determine exactly what that meant.
In its reply to the Seventh Circuit’s remand, the ALJ noted that in the statute “Congress did not intend to give ‘work-related’ a narrow or technical meaning, but rather sought to cover a variety of causal relationships that might exist in workplaces.”
When the recordkeeping standard was being drafted, OSHA rejected a definition that an injury had to be predominantly or significantly caused by work to be recordable the ALJ wrote.
Despite the ALJ’s response to its earlier concerns, in its second opinion in this case, the Seventh Circuit didn’t re-address the definition of “contributed to.” Instead, it focused on circumstances when a medical expert bucks conventional medical wisdom and whether a company’s own previous experience is important.
The take-home: It took a while, but Caterpillar won this case by noting its own history of employees doing similar work to the one who was injured and by using its own credible investigation to determine whether an injury is work-related and OSHA recordable.
What do you think about the court’s decision? Let us know in the comments below.
(Caterpillar Logistics v. Secretary of Labor, Circuit Crt. 7, No. 13-1106, 12/12/13)