Be Prepared for OSHA's Medical Mismanagement Claims

​The Occupational Safety and Health Administration (OSHA) has recently issued medical mismanagement claims to try to prove violations of the general duty clause of the Occupational Safety and Health Act (OSH) Act. Employers, particularly ones with onsite medical professionals, need to pay attention to these claims and take steps to defend themselves against them.

The OSH Act's general duty clause is intended to give OSHA a means to address hazards for which no specific standard currently exists, said Ashley Meredith Strittmatter, an attorney with Baker Donelson in Knoxville, Tenn. Recent situations in which OSHA used the general duty clause include the COVID-19 pandemic, heat-related illnesses and workplace violence, she said.

Medical mismanagement claims are rare, but Patrick Joyce, an attorney with Seyfarth in Seattle, expects OSHA "will rely heavily on medical mismanagement as an avenue to approach ergonomics/repetitive motion injuries in the workplace."

The agency "has shown an increasing interest in ergonomics in the workplace, mostly in the context of warehouse, poultry and other similar workplaces," said Jon Schaefer, an attorney with Robinson & Cole in Hartford, Conn.

What Is Medical Mismanagement?

Medical mismanagement can involve employers allegedly delaying evaluation, care or treatment of injured workers by a medical provider beyond an onsite medical clinic or representative, whose performance OSHA deemed inadequate, Strittmatter explained.

It might also involve employers prematurely returning injured workers to their regular jobs. For example, medical mismanagement could arise if someone slips and falls and is put back to work right away, said Scott Allen, an attorney with Foley & Lardner in Milwaukee.

Strittmatter said OSHA has identified multiple medical mismanagement concerns, including:

• Employees weren't given sufficient opportunity to become conditioned to the work.
• Minimal information was given to occupational health professionals (OHPs), or the OHPs did not sufficiently encourage employees to report musculoskeletal complaints.
• Medical records were incomplete.
• The OHPs didn't follow up with employees who returned to work.
• In-house OHPs failed to appropriately refer employees to physicians.
• Inappropriate job accommodation was provided for workers returning from medically directed time off.
• Tracking and follow-up of employees with musculoskeletal complaints was inappropriate or inadequate.
• Treatment was inappropriately conservative.
• Medical protocols lacked precision.

Schaefer said OSHA also has taken issue with employers restricting what information is provided to onsite medical professionals about employee injuries, as well as onsite medical professionals working outside their scope of practice.

"This is not really an expansion of the general duty clause," said William Principe, an attorney with Constangy, Brooks, Smith & Prophete in Atlanta. "Medical mismanagement claims under the general duty clause were raised in citations in the 1990s and early 2000s when ergonomics was more of a focus of OSHA." He added that claims of medical mismanagement can be useful as a union-organizing tool.

Important Questions to Ask

Complicating medical mismanagement cases are the individual's pre-existing, underlying personal medical conditions, as well as their activities away from work, Principe said.

Other considerations include the following questions:

• What provisions has an employer made for onsite evaluation and treatment?
• Are the onsite providers operating under the written standing orders of a physician?
• What are the qualifications of the onsite providers?
• How long is a symptomatic employee allowed to continue receiving treatments onsite before being referred for evaluation and treatment by a qualified outside provider?
• To what extent are employees free to seek outside medical attention under that state's workers' compensation statute?

Defense Strategies

Principe said employers' best defense against medical mismanagement claims is to carefully design their medical management process by:

• Training employees on how to recognize work-related symptoms of injuries and how to report those conditions.
• Providing onsite treatments that are designed and administered consistent with the written standing orders of a physician.
• Setting some limits on the duration of onsite treatment before the case must be reviewed by a physician or other licensed health care provider for a determination about the employee's continued treatment.

Joyce said that to prove a general duty clause citation, OSHA must establish that:

• The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
• The hazard was recognized by the relevant industry.
• The hazard was causing or was likely to cause death or serious physical harm.
• There was a feasible and useful method to correct the hazard.

"The American Association of Occupational Health Nurses and the American College of Occupational and Environmental Medicine have set forth guidelines and recommended practices for a range of topics. Neither has set a bar upon which a specific instance of medical mismanagement could be established," Strittmatter said. "This could support a defense that the hazard was not recognized."

OSHA often struggles to establish these four required elements, particularly the ones involving a "hazard recognized by the relevant industry" and "a feasible and useful method to correct the hazard," Joyce said.

Action Items

Nonetheless, Joyce said employers with in-house medical staff should revisit their policies related to in-house diagnosis, treatment and return-to-work determinations. Remind medical staff to continue relying upon their education, training and experience in their respective medical fields and to ensure all their licensing and continuing education are up-to-date.

"In-house medical departments should continue to maintain thorough records in an appropriate, confidential manner, recording the basis for a particular diagnosis, recommended treatment plan or decision to return an employee to work," he said.

Strittmatter said employers should:

• Evaluate any onsite medical treatment program to make sure it allows appropriate injuries to be referred to an outside physician.
• Make sure their onsite medical treatment program is in line with industry standards.
• Have a local physician evaluate their onsite medical treatment program.