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

Date: Jan 01, 2001

The debate over whether the implementation of ergonomics programs can reduce occupational injuries and illnesses remains the most controversial subject that OSHA has attempted to pursue. OSHA issued its first citation in the mid-1980s, beginning a cascade of inspections that resulted in more than 500 cases over a 15-year time period. Only three employers challenged the citations: Pepperidge Farms, Beverly Enterprises and Dayton Tire. The rest resulted in extensive settlement agreements. OSHA issued many of the citations under the General Duty Clause for failure to abate a recognized hazard. In Secretary of Labor v. Beverly Enterprises Inc., the dispute related to back injuries allegedly caused by lifting patients in nursing homes.

This column will discuss an overview of the case. Next month we will explore the findings of the Occupational Safety and Health Review Commission (OSHRC) in more detail.


Burden of Proof

In his initial decision, the administrative law judge (ALJ) held that OSHA had failed to prove the existence of the hazard, because OSHA had failed to prove the existence of a hazard with sufficient specificity to meet its burden under section 5(a)(1) of the OSH Act, known as the General Duty Clause. OSHA's burden under the General Duty Clause is to prove that a hazard exists, that the employer recognized it, that it caused or was capable of causing serious injury or death, and that there are feasible means of abatement.

Like the Pepperidge Farm case before it and the Dayton Tire case, which is still pending, this case involved the interpretation of whether OSHA had proved that a recognizable hazard existed in the Beverly Enterprises Inc. nursing homes in western Pennsylvania. OSHRC relied in large part on the steps that Beverly took to address what it considered to be a significant cost both to itself and to its employees. In overruling the trial court judge, the two person OSHRC majority concluded that OSHA did meet its burden of proof, citing the incidence of injuries, the application of the NIOSH Lifting Guide, and the epidemiological evidence showing that in the Beverly facilities, nurse assistants suffered higher frequency of back injuries than other occupational groups. OSHRC acknowledged that 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. Regardless, the OSHRC said, Beverly's actions showed that it 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.

In ruling that OSHA had met its burden of proof, the OSHRC majority dismissed the fact that OSHA could not, in its "initial pleadings . . . precisely describe the recognized hazard . . .[but that by] the time of the hearing, the parties plainly understood that the issue they were litigating was whether the particular type of lifts in which Beverly's [nursing aides] were engaged presented a hazard." Under this analysis, employers do not have to know what is causing a problem, only be aware that one might exist and be taking steps to correct it. After OSHA issues the citation, and the legal wrangling ensues, the workplace conditions that are violations will become known. How can one "recognize" something that requires an adversarial process to define it?

The General Duty Clause was not intended to be a catch-all that OSHA could assert when the specific conditions that lead to injury are not apparent, nor was OSHA empowered to force employers to conduct experiments at the edge of medical science. Rather, it was intended to give OSHA power to force employers to address problems that they knew or should have known existed in their workplaces that cause injury to employees. In reaching its conclusion, OSHRC ignored previous court decisions, like the SPI decision.

Overturning the Decision

OSHRC ignored the trial court's judgement regarding the credibility of the witnesses and the evidence presented at trial. Under the usual standard of review, appellate courts are permitted to second guess the trial judge or jury "the finder of fact" only where there is clear error, or the trial court plainly abused its discretion.

As we have noted before, in considering any appellate decision for guidance on legal issues, one must always be cognizant of those issues that are presented by the parties for consideration by the court. Often, courts issue lengthy rulings containing discussions of side issues or of issues that are not essential to reach a result. In such cases, these discussions - called obiter dicta, meaning passing or incidental statements - carry no precedent and are only as persuasive as their inherent logic would justify. In other cases, courts go beyond the factual findings of the trial court to overturn the lower court's decision.

Clearly, that was the case here. The trial court did not address the question of whether Beverly recognized the hazard or whether lifting in all cases led to serious injury. OSHRC usurped the trial court's function in this case, evaluated the evidence in its own right, and reached an outcome on those questions, even though the parties were not focused on that at the trial stage. Nevertheless, OSHRC could not reach a majority decision on whether Beverly was in violation of the statute, because a majority could not agree that feasible means of abatement had been demonstrated by OSHA.


The courts should be leery of allowing OSHA to point to such efforts by employers that exceed the requirements of the law in protecting employees, because of the chilling effect such approaches will produce. In this case, OSHRC confirmed that cutting edge corporate health and safety efforts will be used to show that an employer has failed to meet its obligations under the General Duty Clause. This type of decision encourages employers to keep internal staff or consultant safety and health reports from OSHA, because even significant efforts will be deemed insufficient.

The better approach is to require OSHA to show more than simple knowledge of the existence of injuries under the General Duty Clause. The standard OSHA should meet is to show that the employer acted with plain indifference to or intentionally disregarded the safety of its employees, that the employer knew of specific conditions in its workplace and failed to take steps that are, by common experience in its industry, acknowledged as effective in preventing the injuries. Whether OSHA will be able to show that Beverly could have prevented back injuries from lifting, remains to be seen. At the hearings last spring in Washington on the proposed ergonomics standard, none of OSHA's experts could point to the cause or the cure of back injuries. How will they do so now?

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

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