AN OPPORTUNITY FOR OCCUPATIONAL HEALTH PROFESSIONALS TO OFFER GUIDANCE
By Karen O’Hara
A few hours into his first day on the job, a 21-year-old Ohio man suffered severe burns and lost four fingers on his right hand when he tried to clear a jam in a plastic molding machine.
In Wisconsin, a year after a worker amputated part of her right index finger on a spot welder at a metal stamping plant, a 19-year-old co-worker suffered a similar injury on her ninth day using the same machine.
In the first case, the Occupational Safety and Health Administration (OSHA) cited the employer for two willful, two repeated, and one other-than-serious violation. The company faces proposed penalties of $171,270 and has been placed in the agency’s Severe Violator Enforcement Program.
In the second case, OSHA found the employer failed to implement previously agreed-upon safety procedures. It issued two egregious willful, one repeated, three serious, and two other-than-serious safety violations, with proposed penalties of $207,600.
In both cases, the companies failed to comply with OSHA’s severe injury reporting rule – reducing the likelihood of a prompt response that could help prevent additional potentially disabling injuries or fatalities.
REPORTING RULE BEEFED UP
Rather than wait for something else bad to happen, OSHA adopted 29 CFR Subpart 1904.39, Reporting Fatality, Injury and Illness Information to the Government, effective Jan. 1, 2015. The revised rule requires covered employers to report all work-related in-patient hospitalizations, amputations and losses of an eye to the agency within 24 hours of learning of them. Work-related fatalities must be reported within eight hours.
Dr. David Michaels, assistant secretary of labor for occupational safety and health, says the revised reporting rule fundamentally changes the way OSHA does business.
“Before 2015, employers only had to report to OSHA work-related fatalities or incidents where three or more workers were hospitalized,” he said. “But we have seen that when we inspected after these tragic events, the (reporting) work sites often had previous serious injuries and amputations that we had never known about. These were red flags that there were serious hazards in this workplace that needed to be prevented.
“Hospitalizations and amputations are sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.”
Using the new severe injury/illness reporting rule as the impetus, OSHA seeks to expedite inspections, target “bad actors,” and generally encourage employers to promptly address health and safety risks.
Consequently, occupational health professionals are in a position to advise client companies in all types of industries on:
- Preparing for a possible OSHA investigation
- Hazard response and prevention practices
- Medical causation determinations and root-cause analyses
EMPLOYERS ON NOTICE
OSHA officials say the agency has about 2,200 inspectors––one compliance officer for every 59,000 workers. In 2014, federal OSHA conducted 36,163 worksite inspections; states with their own programs conducted 47,217 additional site visits.
In 2013, the most recent year for which data are available, 4,585 fatal work injuries were reported in the U.S., or 3.3 fatal injuries per 100,000 full-time equivalent workers. Slightly more than 3 million non-fatal workplace injuries and illnesses were reported by private industry employers in 2013, for an incidence rate of 3.3 cases per 100 equivalent full-time workers, according to estimates from the Survey of Occupational Injuries and Illnesses conducted by the U.S. Bureau of Labor Statistics.
These statistics help explain why OSHA, a relatively small unit within the Department of Labor, is looking for ways to leverage its resources. The agency initiated inspections for about 34 percent of the 5,400 reports of fatalities and severe injuries/ illnesses it received between January and June. At a minimum, all reporting employers were contacted by an OSHA agent to discuss a response plan, Dr. Michaels said during a speech he gave at a National Advisory Committee on Occupational Safety and Health (NACOSH) meeting.
“We are working with employers in new and different ways,” he explained. “For those employers that we are not inspecting, we expect them to conduct an investigation and let us know what changes they will make to prevent further injuries. By establishing a relationship with all employers who report severe injuries, and by encouraging them to investigate the incidents in which the worker was hurt, I believe we will make a huge difference.”
All employers covered by the Occupational Safety and Health Act, including those who are exempt from maintaining injury and illness records, are required to comply with the reporting rule or face potential citations and fines. In the 25 states and two U.S. territories that have their own occupational health and safety programs, employers are advised to check the enforcement status with local authorities. For example, Minnesota OSHA plans to enforce the rule effective Oct. 1, 2015, while in Virginia a similar law took effect July 1, six months after federal implementation.
An other-than-serious citation will typically be issued for failure to report, with an unadjusted penalty of $1,000. If an OSHA area director determines it is appropriate to achieve what agency officials call “the necessary deterrent effect,” the penalty may be increased to $7,000. For employers, there also is the risk of negative publicity: The agency frequently posts news releases about citations and fines on its website and uses public appearances to call attention to violators.
REPORTING RULE IMPACTS
While there clearly are impacts associated with the reporting rule, it is too soon to draw conclusions about their magnitude. However, individual severe injuries previously would have been routinely recorded in the 300 Log of Work-Related Injuries and Illnesses. “OSHA would never know about them unless they visited a work site for an inspection,” said Valerie Butera, an attorney in the Washington, D.C., office of Epstein Becker Green, where she specializes in workplace health and safety law. “As OSHA anticipated, compliance with the revised reporting rule has focused the agency’s attention on industries and hazards that it had not focused on before.”
For example, on July 30, OSHA cited an Akron, Ohio, manufacturer for nine serious safety violations after learning a worker had amputated her right hand while operating a mechanical power press. Without prompt reporting, issues including lack of adequate machine guarding, failing to comply with machine safety procedures and inadequate training might not have come to the agency’s immediate attention, officials said.
The agency is also responding with educational resources. It recently:
• issued a safety Fact Sheet on preventing cuts and amputations from food slicers and meat grinders
• announced a renewed focus on injuries in hospitals and nursing homes
• released an updated version of its National Emphasis Program on Amputations, which describes policies and procedures for reducing workplace machinery and equipment hazards
Responses to an informal survey of NAOHP member organizations and occupational medicine physicians suggest the majority of employers are not overly concerned about the reporting rule change, prompting some to speculate that any company could be caught off guard in the event of a severe incident. Experts say forethought on the part of employers – even those with stellar safety records – is advisable, especially for those in high-risk industries.
“Historically, we do not get a lot of inquiries from our client companies related to these kind of issues (reporting and recordkeeping),” said Margaret Sweigert, R.N., system director, Summa Center for Corporate Health, Employee Health and BWC Denials Management, based in Akron. “When we are initially working with clients, we encourage them to develop strong and clear policies from the beginning – that’s easier than trying to scramble after the fact.”
INVESTIGATING THE ROOT CAUSE
According to Dr. Michaels, “addressing underlying or root causes is necessary to truly understand why an incident occurred, to develop truly effective corrective actions, and to minimize or eliminate serious consequences from similar future incidents.”
The National Safety Council and OSHA have jointly developed a guidance document for employers on How to Conduct an Incident Investigation with nine key steps:
- Call or gather people necessary to conduct the investigation and obtain an investigation kit.
- Secure and preserve the area where the injury occurred.
- Identify and gather witnesses.
- Interview the involved worker.
- Interview all the witnesses.
- Document the scene of the injury through photos and/or videos.
- Complete the investigation report, including determination of what caused the incident and what corrective actions will prevent recurrences.
- Use results to improve the injury and illness prevention program so that hazards can be more accurately identified and controlled before they result in incidents.
- Ensure follow-up on corrective actions.
From a legal perspective, Ms. Butera said it is unclear whether statements made in an investigative report triggered by a root-cause analysis will be used as “admissions” in the event of an OSHA enforcement action.
A root-cause report should be factual and avoid conjecture. As part of root-cause analysis, experts recommend following a line of inquiry that explores possible contributing factors such as the presence of toxic substances; equipment or tool defects; job procedures and processes such as lockout/ tagout; the overall work environment (e.g., lighting, air quality, floor surface, climate); training practices; and the use of personal protective gear. It’s also important to consider how factors such as fatigue or the use of alcohol, and illicit or prescription drugs may have contributed to an accident and injury.
“Employers should be wary of merely blaming the victim and should instead investigate the incident thoroughly, interviewing the injured employee and all witnesses and assuring them that they will not be retaliated against for speaking truthfully about the incident,” Ms. Butera advises. “The report should be factual and avoid conjecture.”
DETERMINING CAUSATION
In some cases, an occupational medicine physician will be asked to help establish causality and develop an effective treatment and prevention plan. In some states, the treating physician may be required to estimate the extent to which an exposure or purported cause contributed to the worker’s condition for insurance purposes.
When making a causation determination, the clinician must collect a thorough medical and occupational history, perform a physical exam, and evaluate diagnostic test results. The clinician also must function as a detective by:
- collecting information on the incident(s) reportedly causing the injury or illness
- examining intervening factors such as concurrent non-work-related injuries, disease processes or other impairments
- reviewing scientific evidence on the cause-effect relationship
According to Jon T. O’Neal, M.D., M.P.H., a board-certified occupational medicine physician with Occupational Health Partners, Comcare, Salina, Kansas: “In order to prevent an illness or injury, you must know what caused the illness or injury. Prevention is directly linked to causation.” When a workers’ compensation case is litigated, a causation determination “may be best analyzed by an occupational and environmental physician trained in preventive medicine.” (Refer to Causation Determination in Workers’ Compensation and Toxic Tort Cases.)
BEING PREPARED
During a recent webinar on OSHA reporting, Mark Sullivan, a senior consultant at Aon Risk Solutions, said employers who are the best-prepared for an OSHA investigation have strong safety and health management programs. In addition to participation by qualified occupational medicine physicians and other clinical advisers, such programs typically feature:
- Senior management leadership
- Employee involvement
- Sound planning and careful execution of initiatives
- Documentation of hazards and corrective actions
- Consistent use of a performance evaluation system
“These are the types of things good actors are already doing,” said Mr. Sullivan, who cited ANSI/AIHA/ASSE Z10 (a standard for occupational health and safety management systems), British Assessment Bureau OHSAS 18001 certification, and other leading industry models.
He advises employers to seek legal counsel in advance of and during inspections as well as advice from occupational health and safety professionals: “Practically speaking, the more urgent thing to understand is how to correctly report injury and illness data. At some point, you may need to defend yourself.”
Karen O’Hara is Director, Marketing and Communications, at WorkCare, Inc., a national occupational health services company. She is the former Editor-in-Chief of VISIONS and Senior Vice President of RYAN Associates.
