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Ergonomic Injuries and the Impact of Defining Hazards: Secretary of Labor v. Beverly Enterprises, OSHRC Docket No. 91-3344, et. seq., Oct. 27, 2000

Date: May 01, 2001


Secretary of Labor v. Beverly Enterprises Inc., covers ergonomics and soft tissue injuries, one of the most controversial subjects that OSHA has faced in its history. From the first citations issued in the mid-1980s, OSHA's inspections resulted in more than 500 cases involving ergonomics-related citations, only three of which were challenged by employers: Pepperidge Farms, Beverly Enterprises and Dayton Tire. Pepperidge Farms resulted in a partial victory for OSHA, because the agency could not prove that there were feasible means of abatement for the repetitive motion injuries. In this case, OSHA could not define safe levels of activity. Dayton Tire resulted in a clear decision against OSHA on grounds that the agency had failed to prove that injuries were the result of workplace activities. Finally, the administrative law judge (ALJ) in Beverly Enterprises concluded that OSHA had not shown that the job tasks in the nursing homes caused back injuries, holding that OSHA had failed to prove the existence of the hazard, one of the four essential elements to sustain its citation under the General Duty Clause. This month, we discuss what the Occupational Safety and Health Review Commission (OSHRC) concluded from the evidence in the Beverly case.

Evidentiary Conclusions

In overruling the trial court judge, the two-person OSHRC majority concluded that the incidence of injuries, the application of the National Institute of Occupational Safety and Health (NIOSH) Lifting Guide and the epidemiological evidence demonstrated that in the Beverly facilities, nurse assistants suffered a higher frequency of back injuries than other occupational groups, even though OSHA failed to show specific injuries resulted from the tasks at the nursing homes or that OSHA had identified specific tasks that led to the injuries. Beverly's actions were taken to prove that Beverly knew there was a hazard, however it was described, and OSHA should be able to require employers to address those hazards, if it can show that feasible means of abatement exist.

Analysis of the Case

OSHRC overstepped its bounds. Overruling the trial court on issues of fact is one thing; allowing OSHA to pursue employers when the hazard is so undefinable that even OSHA cannot define it until well into the adversarial process of enforcement is another. In rejecting the trial court's analysis of the facts, OSHRC went beyond the initial issues that the trial court resolved and introduced new issues, finding that Beverly's training program established the existence of the hazard, and that Beverly's lifting methods were likely to cause low back pain. In doing so, OSHRC reached a conclusion that even OSHA's experts at last year's hearings on the proposed ergonomics standard could not reach: The causes of lower back pain are now known.

OSHRC usurped the trial court's function in this case. By evaluating the government's case, OSHRC essentially rewrote the ALJ's decision, rejecting Beverly's evidence in favor of OSHA's experts. Citing precedents in its jurisprudence and admitting that the question of significant risk had not been defined in its precedents, OSHRC nevertheless found that a significant risk of harm could be shown by OSHA, if the agency could demonstrate an increased incidence of injury among a group of employees. OSHA accomplished this by pointing to Beverly's increased lost workday injury (LWDI) rate for proof that there was some hazard in Beverly's workplaces, even if it could not be defined.

Contradicting the ALJ's conclusion that the medical evidence did not establish a relationship between the lifting activities of Beverly's employees and their complaints, OSHRC accepted the unvalidated NIOSH Lifting Guide, testimony from OSHA's experts and published data on the incidence of lifting injuries among nursing professionals. While Beverly's experts acknowledge that pain episodes can be triggered by lifting, lifting is not proven to be the proximate cause of the injury suffered. OSHRC ignored this conclusion and accepted the notion that frequent, another concept that is undefined, lifting is associated with the occurrence of low back pain. Given its view of the evidence that the ALJ had rejected, OSHRC concluded that "Beverly's working conditions resulted in numerous lost-time incidents and prevented Beverly's . . . [employees] from performing their usual daily activities, we conclude that the manual lifting of residents was shown on this record to be a hazardous work practice and that Beverly controls the methods used to perform the lifting."

Use of NIOSH Guidelines as Evidence

Similarly, OSHRC reached its conclusions on the remaining issues by rejecting Beverly's contentions and accepting OSHA's at face value. The NIOSH Lifting Guide had "general acceptance in the scientific community of the methodology upon which the NIOSH lifting index is based," but failed to address whether the specific recommendations in the guide in fact were predictive injury or protective of employees. OSHRC also concluded that low back pain has a substantial and serious effect on an employee's ability to perform normal activities, which it no doubt can. But the test for OSHA jurisdiction over working conditions is whether those conditions cause the condition, not solely whether they can aggravate a pre-existing condition. No one wants to have workplace conditions that increase the health deficit of an employee but, in the case of low back pain, causes may be completely unrelated to workplace activities, and changes in the workplace activities therefore cannot reduce the impact on health.

Conclusion

In this case, OSHRC ignored the fundamental premise of the Benzene case, wherein the U.S. Supreme Court addressed the scope of OSHA's authority in rulemaking. The Supreme Court treated significant risk as a jurisdictional issue, saying that a delegation of authority to OSHA that is not premised on a finding that something significant is occurring in the workplace is not constitutional. Thus, in the absence of significant risk, OSHA does not have authority to involve itself in private activities. OSHRC ignored the Supreme Court's limit on OSHA's power and expanded it under the General Duty Clause to infinite borders. Absent some clearly articulated limits on that power, under recent cases involving the Environmental Protection Agency (EPA) and Food and Drug Administration (FDA), it is likely that OSHA's power will not be upheld.

Reprinted with permission of Compliance Magazine (compliancemag.com) Copyright © 2001 by Douglas Publications Inc., Richmond, VA. All Rights Reserved.

Editor's note: This column is a continuation of the "Court Docket" that was published in the January 2001 issue of Compliance Magazine.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.