OSHA Recordkeeping Handbook - Msabc.net

November 19, 2002Joseph Woodward, Esq.Associate Solicitor for the Occupational Safety and Health AdministrationDepartment of LaborOffice of the Solicitor200 Constitution Avenue, NW, Room S-4004Washington, DC 20210Re: December 12, 2001 OSHA Recordkeeping TrainingWhile we very much appreciate the proactive efforts being made by the agency to provide trainingas it implements the new rule, I am writing on behalf of NAM to express my concern that theDepartment of Labor’s keynote training presentation regarding the new recordkeeping rule, itsDecember 12, 2001 satellite “webcast,” contained information inconsistent with our settlementagreement and omitted information central to that agreement.§1904.5First, as you know, an injury or illness is not presumed to be work-related unless “an event orexposure in the work environment is a discernable cause of the injury or illness or of a significantaggravation to a pre-existing condition.” See, inter alia, Settlement Agreement section 2(B) (emphasisadded). The Settlement Agreement restates this important principle: “Regardless of where signsor symptoms surface, a case is recordable only if a work event or exposure is a discernible cause ofthe injury or illness or of a significant aggravation to a pre-existing condition.” Id. (emphasisadded). In other words, it is not the location where signs or symptoms surface, it is the discerniblework-related event that defines causation and triggers recordation. In response to a questionregarding a pulled muscle that occurred in the workplace, but with which no identifiable workrelatedevent or exposure could be identified, the representative from OSHA’s Office of Statisticscorrectly noted that “if there is no event or exposure that led to the condition, I don’t think thatpresumption [of work-relatedness] would apply.” Transcript at pp. 44-45.* Another authoritativeOSHA spokesperson, however, disagreed with his colleague and stated, “It sounds like a workrelated case to me. It sounds like the person was injured while they were in the work environmentand, yeah, I would consider that a work related case.” Id. at p. 45 (emphasis added). I am concernedthat this response and OSHA’s training materials impart an erroneous view of the so-calledgeographic presumption. Unfortunate events which occur to an individual while he is at work andengaged in normal life functions, such as walking over an even surface and pulling a muscle,should not be presumed to be work-related simply because they occur at work. Absent some otheridentifiable work-related event or exposure in the work environment, such a conclusion clearlyconflicts with the “discernable cause” rule to which OSHA agreed in the settlement. Any trainingto the contrary ignores the agreement’s imposition on the Secretary of Labor the burden of proofregarding work-relatedness and is contrary to its substantive provisions.Second, our settlement agreement clearly specifies that the existence of an injury or illness is athreshold inquiry and that, even where, for example, oxygen is administered, in the context ofworkplace exposure to a toxic substance, if an injury or illness did not occur, the case remains nonrecordable.See Settlement Agreement at sections 2(E), (F); accord Transcript at p. 86 (discussingnon-recordability of precautionary administration of antibiotics). In response to a question relatingto this specific issue, which assumed the prophylactic administration of oxygen without any toxicexposure or medical treatment, however, OSHA’s spokesperson replied that, “Under the new rule,oxygen is considered medical treatment. So if the person has an injury or illness ... if they’reexhibiting some signs of difficulty and they’re given oxygen, then that’s now considered medicaltreatment.” Transcript at p. 46 (emphasis added).* The transcript of the training session is available athttp://www.vodium.com/vs_data/transcript/labor8NG8Y91T.txt.36OSHA RECORDKEEPINGHANDBOOK