The Occupational Safety and Health Act (OSHA) requires employers to maintain a log of work-related deaths, injuries, and illnesses. A death, illness, or injury is considered work-related if “the work environment either caused or contributed to the resulting condition.”
Chief Judge Frank Easterbrook and the Seventh Circuit Court of Appeals assume that the phrase “contributed to” means an increase in likelihood, but note that “how much of an increase is enough neither the regulation, nor any of the Secretary’s decisions, says.” That’s problematic, according to Easterbrook. In fact, Judge Easterbrook finds that entire “work-relatedness” requirement to be a waste of time and money.
Here’s one example that demonstrates why.
The Department of Labor assessed Caterpillar Logistics a $900 penalty for failing to log a work-related injury after one of its employees, MK, developed tennis elbow and golfer's elbow in her right and left arms. MK, who worked in Caterpillar's packing department, began to experience pain after five weeks of loading bags of parts in the department.
Caterpillar's staff physician, Norma Just, placed MK on temporary leave and later diagnosed her condition. MK was later given a different job within the department.
Dr. Just later concluded that the repetition of MK's work activity alone could not have caused her injuries. After convening a review panel, Caterpillar agree and chose not to log the injury as work-related. But the Department of Labor and an Administrative Law Judge (ALJ) disagreed with that determination and fined Caterpillar.
The Seventh Circuit Court of Appeals reversed that decision.
Both Caterpillar and the agency provided evidence for their respective stances on whether MK's injuries were "work-related," but the Seventh Circuit said that the agency erred by failing to test its hypothesis against Caterpillar's hypotheses. Specifically, the court said that the ALJ should have considered Caterpillar Logistics' 300-person-years of experience with its packing department.
Tennis elbow or golfer's elbow occurs at a rate of about 1-2 percent per year in the general population. By those calculations, Caterpillar should have encountered between three and six cases among the staff of the packing department if work played no causal role at all. It actually had one case -- MK's.
The Seventh Circuit notes that the OSHA log doesn't show actual risks; it shows whether the employer believes that there is a connection between the working environment and the injuries. Judge Easterbrook suggests that everyone could save a lot of time and money if OSHA simply eliminated the work-relatedness requirement.
Would tinkering with the work-relatedness requirement for the log help or hurt your clients?
- Caterpillar Logistic v. Hilda Solis (Seventh Circuit Court of Appeals)
- OSHA Offers Free Consults to Small Businesses (FindLaw's Free Enterprise)
- Humiston-Keeling Still Controls Reasonable Accommodation Claims (FindLaw's Seventh Circuit Blog)