OSHA Boomerang?

Tuesday, July 17, 2012
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The U.S. 7th Circuit Court of Appeals has delivered a positive decision for employers regarding workplace-related injury and illness. Yet, say employment-law experts, the decision -- while maintaining the status quo regarding certain reporting guidelines -- does have the potential for uncertainty in the future.

In the case, the court vacated an administrative law judge's decision penalizing Caterpillar Logistics Services Inc. for allegedly failing to record an employee's "work-related" musculoskeletal disorder on the company's Occupational Safety and Health Administration log, as required.

With its decision, the court "stamps back" an effort by OSHA to expand the meaning of "work-related" in the context of ergonomic injuries for the purposes of record-keeping, says Casey Cosentino, an attorney with Epstein Becker Green in Washington.

In this case, the employee experienced pain in her right arm after working five weeks in the company's packing department. She visited the company's medical clinic, where the staff physician diagnosed her condition as medial and lateral epicondylitis (sometimes known as golfer's or tennis elbow).

The physician concluded, however, that the repetitive motions in the employee's work -- by themselves -- did not contribute to her condition, according to court documents. A five-member internal review panel agreed and the company, therefore, did not record the injury on the OSHA 300 log as a work-related injury.

OSHA disagreed, and cited the company for failing to record the injury. The administrative law judge sustained OSHA's decision, and the Occupational Safety and Health Review Commission declined to review the ALJ's decision.

Caterpillar appealed to the Seventh Circuit, which decided to send back the case to the ALJ -- criticizing the decision to base the ruling on the sole physician to testify in support of OSHA's position and for ignoring the "strong indications that [his] favored witness got things wrong."

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Curtis Capehart, an attorney in the Charleston, W.V., office of Dinsmore, says the court also pointed out the ambiguity of OSHA's regulation, which states an injury is work-related if "the work environment either caused or contributed to the resulting condition." Capehart says one clear take-away from the court decision is that employers that keep accurate injury and illness records are in much better shape legally than those that don't.

"If someone gets cut on the job because of a jagged piece of metal, that's an easy call to make," he says. "But [not] in repetitive-motion injuries. The fact that Caterpiller had never had an injury like that was a big factor to consider, but the ALJ failed to take it into account."

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