By Casey M. Cosentino and Eric J. Conn
On March 20, 2012, the U.S. Court of Appeals for the Seventh Circuit vacated an ALJ’s decision penalizing Caterpillar Logistics Services, Inc. for allegedly failing to record an employee’s “work-related” musculoskeletal disorder (“MSD”) on the Company’s OSHA 300 log. Caterpillar Logistics Services, Inc. v. Sec’y of Labor, No. 11-2958 (7th Cir., Mar. 20, 2012). This case is significant because it stamps back (at least temporarily) an effort by OSHA to expand the meaning of “work-related” in the context of ergonomic injuries and OSHA Injury & Illness Recordkeeping.
By way of background, OSHA requires employers to record certain work-related deaths, injuries, and illnesses. See 29 C.F.R. § 1904.4(a). According to OSHA’s regulation, an injury is work-related if “the work environment either caused or contributed to the resulting condition.” 29 C.F.R. § 1904.5(a). Employers are required to record such injuries on OSHA’s 300 Log, 300A Summary Form, and 301 Report. MSDs are injuries to muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that were not caused by a slip, trip, fall, motor vehicle accident or similar trauma.
In the Caterpillar Logistics case, an 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 (aka golfer’s elbow and tennis elbow). The physician concluded, however, that the repetitive motions in the employee’s work alone did not contribute to her condition. A five-member internal review panel agreed with the physician’s diagnosis and conclusion. The Company, therefore, did not record the injury on the 300 Log as work-related.
After an inspection, however, OSHA determined that the employee’s injury was “work-related” and assessed the Company a citation for failing to record the injury. An administrative law judge (“ALJ”) sustained OSHA’s determination. In doing so, the ALJ concluded that “an employee’s work activities do not have to be the cause, but rather a cause of an injury or illness” in order to be recordable (emphasis added). The ALJ also found the preponderance of the evidence showed the employee’s work activities were at least a contributing cause of the employee’s epicondylitis. The Occupational Safety and Health Review Commission declined to review the ALJ’s decision, rendering the ALJ’s determination final.
On appeal, the Seventh Circuit vacated the ALJ’s decision and remanded the matter for further proceedings. The Court criticized the ALJ for basing his decision on the sole physician to testify in support of OSHA’s position and ignoring the “strong indications that [his] favored witness got things wrong.” Indeed, the Court discounted OSHA’s physician’s testimony because he failed to explain why, if the work activities in the packing department contribute to epicondylitis, no other worker in the Company’s 10 years of operations had contracted this same condition. Additionally, the Court stated that OSHA, not the judiciary, must determine what “§ 1904.5(a) means in saying that an injury is work-related if working conditions ‘contributed to’ the injury.” The Court proposed two alternative meanings for the “contributed to” requirement for OSHA to consider: (1) “increased the probability, above background levels, by a statistically significant amount;” or (2) “doubled the probability.”
Nevertheless, the Seventh Circuit was puzzled by the presence of the work-relatedness requirement in § 1904.4(a). The Court reasoned that if the purpose of the injury log is to help the U.S. Department of Labor determine which occupations are hazardous and in need of enforcement resources and regulatory changes, then that purpose is best served if employers were required to record all injuries, not just the injuries that employers determine are connected to the workplace. The Court further noted that eliminating the work-relatedness requirement would save employers time and the high expense of evaluating whether workplace factors contribute to injuries and illnesses. For these reasons, the Court noted that “the Secretary may wish to take another look at § 1904.4(a).”
Because of the Caterpillar Logistics case, it remains unsettled whether an employee’s job duties must be the cause of an injury or illness or a cause to constitute work-relatedness. At the very least, however, this decision reminds ALJs to weigh all the evidence in determining whether an injury or illness is work-related and/or an anomaly. Employers should stay tuned for further guidance on how much workplace factors must contribute to injuries and illness to be considered work-related. In the meantime, because the work-relatedness requirement is on OSHA’s radar, employers should review their regulatory obligations to record work-related injuries and illnesses, and ensure that they are maintaining in accurate injury and illness recordkeeping logs.