Seventh Circuit Criticizes OSHA’s Definition of Recordable Injury


By Roy Maurer January 13, 2014

A federal appeals court vacated a record-keeping citation levied by the Occupational Safety and Health Administration (OSHA) for failing to consider a preponderance of scientific evidence. Moreover, the court criticized as vague the agency’s definition of a recordable work-related injury.

The U.S. Court of Appeals for the 7th Circuit rejected an administrative law judge’s (ALJ) twice-affirmed ruling that an employee at Caterpillar Logistics Inc. had suffered a work-related ergonomic injury. The ALJ’s decision had been affirmed by the Occupational Safety and Health Review Commission.

The appeals court held that the ALJ inappropriately relied upon a minority view held among musculoskeletal specialists and ignored epidemiological studies and the company’s history.

“We are surprised that an ALJ would echo such a position and that the full Commission would decline to intervene,” appeals court Judge Frank H. Easterbrook wrote. “Judges and other lawyers must learn how to deal with scientific evidence and inference.”

‘Tennis Elbow’

A Caterpillar employee in the packing department was responsible for removing items from containers and packing them in boxes for shipping, a job that requires repetitive hand movements and turning (pronation) of wrists, elbows and shoulders. The employee developed epicondylitis (aka tennis elbow). OSHA fined the company $900 for not recording her injury as work-related. Caterpillar convened a fiveperson panel, including three boardcertified specialists in musculoskeletal disorders. Relying on guides issued by the National Institute for Occupational Safety and Health and the American Medical Association, the panel concluded that repetitive motion plus force can cause epicondylitis and that pronation plus force can also cause the condition, but that repetitive motion or pronation without force does not.

At a hearing, several experts supported this conclusion, not only based on the guides but also on epidemiological studies and the packing department’s own history. The worker in question was the first in the department’s history to develop epicondylitis, leading the experts to conclude that the tasks performed do not cause or contribute to the condition.

To refute this testimony, the Labor Department brought a clinical professor of medicine as its single witness. He testified that the combination of repetition plus pronation must have caused the condition; however, he did not explain why that was, nor did he cite any epidemiological evidence. “[His] view appears to be one that few if any other specialists espouse, but the ALJ accepted it. In doing so the ALJ … ignored the epidemiological studies and Caterpillar’s experience,” Easterbrook wrote.

The appeals court had harsh words in response to the ALJ’s assertion that evidence contrary to OSHA’s expert was immaterial. “Such a headsIwintailsyoulose declaration does more to make a witness look like a quack than it does to support reliance on the witness’s approach. … It is unscientific and antiintellectual; it is a hallmark of the scientific method to follow the data whichever way they point.”

Easterbrook observed that a prevailing view may be wrong, but that prevailing views, and the data behind them, must still be considered.

Noting that any worker may have “idiosyncratic susceptibility” to an injury, the appeals court said that OSHA’s expert should have examined data “from thousands of workers in hundreds of workplaces” or at least data on “hundreds of workers in Caterpillar’s own workplace.”

Defining Recordable Injuries

The first time this case was before the 7th Circuit, Easterbrook took issue with OSHA’s definition of a recordable work-related injury. The regulation defines a death, illness or injury as work-related if “the work environment either caused or contributed to the resulting condition.” The court determined there was not enough information in the regulation or in any guidance to determine exactly what “contributed to” meant.

Easterbrook wrote: “This could mean ‘increased the probability, above background levels, by a statistically significant amount.’ If the requirement of ‘contribution’ is stronger—if, say, it means something like ‘doubled the probability’—then the experience in the packing department is even more important.”

Labeling the work-relatedness requirement a puzzle, Easterbrook suggested that OSHA discard the rule that requires employers to record injuries only when they are work-related and have them record all injuries instead. “Then the Department can compare rates of injury in a given job with the background rate in the general population; the difference can be attributed to workplace hazards. If, however, employers log injuries only after first deciding that each is work-related, the log becomes less useful as an exploratory or investigatory tool.”

Currently, an employer’s injury log does not show actual risks, he said; rather, “it shows whether the employer believes that there is a connection between the working environment and the injuries. Eliminating the work-relatedness requirement would make the log more useful and avoid the potentially high costs of evaluation illustrated by this case.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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