OSHA’s
STATUTORY FRAMEWORK
In order for OSHA to act, e.g., set
standards and enforce them, OSHA has certain statutory
obligations they must meet. They have to show the significance of
the risk and that their proposed actions will significantly
reduce the risk. In addition, they have to show that the
regulations are economically and technically feasible. For
enforcement, OSHA must demonstrate that a hazard exists and that
their proposed solutions will effectively reduce the risk. In
satisfying their statutory obligations, the parameters OSHA must
address include:
- identification and
quantification of the workplace exposure
factors which, when controlled, would affect
or reduce these cases;
- the dose response
relationship of these factors to support any
exposure limits;
- how to take into
account non-work exposures and causes;
- individual employer
experience with ergonomics, intervention and
control programs, or case management programs
in providing generally applicable standards
for all employers;
- the cost and benefits
of applying regulations on selective
industries or broadly on all employers, and
their macro economic impacts.
OSHA’s statutory framework will be
reviewed in the context of other public, private industry, and
labor programs addressing musculoskeletal illness, including
workers compensation programs; public and private research
programs; and industry and labor guidelines or standards,
existing or under development.
Session Arrangers
PJ Edington, Executive Director,
Center for Office Technology
Franklin E. Mirer, PhD, Director, Health and Safety
Department, International Union, UAW
Presenters
David G.
Sarvadi, Esq., CIH,
Attorney at Law, Keller and Heckman
Terrence
H. Murphy, Esq.,
Partner, Klett, Lieber, Rooney & Schorling
OSHA and Ergonomics
Randy
Rabinowitz, Esq.,
Dir. of the Proj. on Fed. Regulation, Adj. Prof.,Univ. College of
Law
Sidney A. Shapiro, Esq., John M. Rounds Prof. of Law,
Univ. of Kansas, School of Law
Administrative Procedures and Risk Regulation: Should There
be Peer Review?
Discussants
Margaret M.
Seminario, Director,
Department of Occupational Safety & Health, AFL-CIO
Vicky
Patton-Hulce, Esq.,
Assoc. Counsel & Senior Env. H&S Atty., MCI
Telecommunications
Ms. P.J. EDINGTON, COT
I’m PJ Edington and
I’m the Executive Director of the Center for Office
Technology and one of your hosts here. I’m thrilled that you
all have come to hear what we think is an exciting program that
we worked extremely hard to put together. I’m also excited
about this session because so far we’ve been discussing the
science and the implications for research and data as it relates
to ergonomics. But in this session we’re going to do a bit
of a change. In this session we’ll address the policy issue
from the statutory obligations of OSHA. I’m sure all our
OSHA participants will be extremely interested in hearing what
our panelists have to say. I also wanted to let everybody know
that our panelists are giving technical presentations on what we
have called the statutory framework. Some participants in the
audience have been coming up to me and saying, have you hired
guards for this panel, because I know they’re going to break
out in fisticuffs. I can assure you that our panelists have
agreed that they’re going to give a lively but non-combative
presentation. And that I will refrain from saying any further
lawyer jokes which we started out on the first day. And I hope
that you all in the audience, when we go to a Q&A, will also
refrain from lawyer jokes since they’re going to refrain
from fisticuffs. Now without further ado I’m going to
briefly introduce our first panelist who has already been
introduced to you. David Sarvadi, as you know, is an attorney
with Keller and Heckman and is also counsel for the National
Coalition on Ergonomics. David.
Mr. DAVID SARVADI, Esq., CIH, Attorney at Law, Keller &
Heckman
Thank you, PJ. Let’s hope
this thing works. Aha, it does. How about that? I spend more time
in front of people talking from an overhead mostly because I like
to move around. So I’m not going to use this, I’m going
to use the pocket one. One of the other things I should tell you
about myself is that more than being a lawyer, when I get up in
the morning the first thing that goes through my mind is
industrial hygiene because that’s where I started my career.
I got a master’s degree in industrial hygiene from the
University of Pittsburgh in 1970. And I spent the first nearly 20
years of my life basically focused from that end of health and
safety. Only in self defense after I moved to Washington did I go
to law school. So I’m allowed to tell lawyer jokes and get
away with it because now I’m one of the fraternity. One of
the things that I was concerned about as I participated in
helping put this program together was that in many scientific
presentations the discussion about public policy is often times
carried out in the absence of any structure or understanding of
the statutory or legal framework that the government has to
operate in. That’s probably the more critical side of the
public policy issue that is, "what does Congress say about
what we are allowed to do or not allowed to do from a public
policy standpoint."
One of the things that I
wanted to do in starting off today is sort of set the framework.
What is the statutory mandate that OSHA has, how is it
structured, what are some of the legal issues, how do the
scientific issues play into this and then what are the policy
questions that come afterwards. Let’s go back to basics.
Remember what Congress said about the goals of the Occupational
Safety and Health Act - to assure as far as possible every
working man and woman in the nation a safe and healthful working
environment. A laudable goal. Something that we’re never
going to reach, but something that we should always be striving
for. It’s the zero risk, zero injury paradigm. In doing
that, OSHA has to set occupational safety and health standards.
And Congress didn’t leave them out there on their own,
fortunately. If they had, the Supreme Court would have intervened
a long time ago and we wouldn’t have had too many standards.
Some would argue we haven’t had many standards at all yet.
Congress said when OSHA adopts
standards, the standards are intended to require conditions or
the adoption or use of one or more practices, means, methods,
operations or processes reasonably necessary or appropriate to
provide safe and healthful employment and places of employment.
Now I’m going to give you a clue to interpreting legal
language. Look for the weasel words. Look for the words that
lawyers put in statutes and in regulations that allow different
people to interpret it in different ways and all end up having
their heads going up and down in the same direction, because
that’s what happens when things get passed. It’s only
when we get to the other side of the equation, where we actually
have to go out and start penalizing people for not having
complied with the law that we get into what was mentioned at the
first stage on the first day of our conference here, and that is,
that "the devil’s in the details." And the devil
truly is in the details when we talk about occupational safety
and health standards. Health standards are a unique case.
Congress treats them differently in the statute. And in
particular in Section 6B5 it talks about the criteria that
OSHA’s supposed to use in terms of establishing a health
standard. It says, it has to establish those standards which most
adequately assures to the extent feasible on the basis of the
best available evidence that no employee will suffer material
impairment of health or functional capacity if exposed for their
working life. Look through this phrase again. Look for the weasel
words - "to the extent feasible," "most adequately
assures," "best available evidence," "material
impairment of health." Those are the things that really
cause us to trip up in the standard setting process in trying to
decide how to interpret those things.
And finally I want to remind
everybody about the employer’s general duty. You know we set
standards for the purpose of identifying those conditions and
those preventive actions that are recognized generally across
industry. That is, everybody who has those sets of conditions
generally can expect to have problems with people who are exposed
to them, and so we ought to take some generally applicable steps
to prevent injury in those cases. But in addition to that, each
employer has a separate and independent obligation to furnish to
each of his employees, employment and a place of employment which
is free from recognized hazards causing or likely to cause death
or serious physical harm to his employees. Let’s take that
and break it down a little bit in the context of ergonomics.
Serious injury or death. When we look at the case law on the
General Duty Clause we talk about four elements that the
government has to prove. What is the serious injury or death that
we are talking about? In many cases, with the kinds of conditions
that we’re talking about here, if you talk about carpal
tunnel syndrome, disabling back injuries, clearly we’re
talking about serious injury or death. If we’re talking
about occasional upper arm pain or occasional wrist pain, or even
persistent wrist pain or arm pain, we’ve got a question in
terms of the General Duty Clause about whether or not that rises
to the level of serious injury that is recognizable under the
General Duty Clause. The second question is the hazard. What are
the specific set of circumstances that lead to those conditions?
The things that occur in the workplace that we can identify on a
regular and predictable basis that if we do something about those
things, the injuries and illnesses will not occur. So it’s
very important to keep that in mind in terms of the context of
the hazard.
One of the things that I say
sometimes that offends my friends in the safety and health
profession is that it is not true that the existence of an injury
presupposes the existence of a hazard in the workplace. That is,
the simple fact that people are getting hurt doesn’t
necessarily prove on a legal basis that there’s something
going on in that workplace that the employer’s going to be
held legally responsible for. Number three is recognition.
We’re not going to hold people to be responsible for things
that they have no way of knowing about. There has to be some sort
of recognition, either by the company itself in the form of
reports or investigations or safety memos or safety committee
meetings, or some sort of recognition. An attempt, for example,
to fix the problem might be indicative of recognition of a
hazard. Alternatively, we can look to broad descriptions of
hazards in industries as a whole. For example, ANSI standards or
industry standards of various types that talk about hazards in a
particular type of industry. And then finally we have to talk
about means of abatement. We’re not going to hold people
responsible legally, we may morally but we are not going to hold
them responsible legally, if there’s no way for them to
prevent the injury or illness from occurring. And it has to be a
feasible means of abatement. We all know what kind of weasel
words we get into when we start talking about the word "feasible."
Okay, let’s talk a little
bit about some of the legal issues that arise in standard
setting. One way to think about standard setting is to think of
it as taking the specific case of the General Duty Clause that
we’ve talked about in the case of a single employer and
making it into the generalization that will apply to all
employers. That is, not only do we have a recognized hazard in a
specific workplace, but if we go to every employer in the country
who has those same set of circumstances we are likely to find the
same kinds of injuries at roughly the same rates. And the things
that we will do to prevent those injuries in the one
employer’s workplace will, in fact, prevent those injuries
in other workplaces. It’s a process whereby we extrapolate
from the specific case of individual employers to the general
case of all similarly situated employers. OSHA has to show that
there’s a significant risk. You can’t simply go in and
say, somebody’s hurt. There’s got to be some comparison
either to people who are not exposed to that particular hazard or
to the general population. One of the things that you’ve
heard over the last couple of days about these kinds of
conditions that we’re talking about here is that
there’s a background level that occurs in the general
population. One of the difficult issues that we are going to face
as we get into rulemaking, is how do you deal with that
background level? How do you deal with the fact that 8 out of the
10 people sitting in this room at some time will suffer low back
pain sufficient to make them put it down on a symptom survey and
say, yes, I wake up three days a week with low back pain, or
whatever those criteria are.
Second, the standard has to
mitigate the risk to a significant degree. We’re not going
to ask people generally to take steps that aren’t going to
produce any outcome. So part of that evidentiary record that OSHA
has to generate is this notion that whatever it is they’re
talking about doing, it’s going to have an impact on the
outcome. And that’s in part also these feasible means of
abatement. The things that are feasible that is, that they are
technically possible, that they’re possible from a cost
standpoint in the sense that you’re not going to put people
out of business in an entire industry if we ask them to do it.
It’s not feasible to eliminate the hazard by eliminating the
job.
I want to bring back a couple
of other concepts here from our Constitution that bear in this
discussion and that are sometimes overlooked particularly in the
context of a situation like ergonomics where we can make some
broad prescriptive statements about what should or should not be
done. And yet we still have some disputes over exactly how to
accommodate that. The first is this notion of fair warning that
was discussed in the Diamond Roofing case. Basically the way we
express this is that ordinary citizens ought to be able to figure
out what is required of them, that is what kind of behavior must
they do; filing your tax return for example, or in the
alternative, what is prohibited - driving over the speed limit.
So one of the things that we want to be able to be sure about in
setting standards under the Occupational Safety and Health Act if
they are to survive a constitutional challenge is they have to be
able to tell people what to do. Where is the line between legal
and illegal behavior?
Second, is the question of
vagueness. These two are interrelated. If the experts can’t
agree on the definition or the description, then the standard
probably isn’t clear enough to give fair warning to
somebody. I’m citing the Georgia Pacific case which was a
case involving the question of, when a forklift is loaded in
front so that you can’t see in front of the load, you have
to drive with the load trailing. Now I dare say, if we went
around the room we’d probably have a general consensus about
what that means. But it turns out if you look closely at the case
when OSHA tried to define that phrase of having an obstructed
forward view it became very difficult to get everybody to agree
on what that meant. And that’s the kind of thing we’ve
got to avoid.
Also I want to talk just
briefly and bring you into the context here in terms of a
substantial evidence in the record taken as a whole. This is the
criteria or the rule that the court will use in examining whether
or not OSHA has done its job in preparing the record and the
kinds of things that we’re talking about here is, "what
constitutes substantial evidence?" Is it one expert’s
opinion? Is it a hundred expert’s opinions? Remember in
times of Galileo the prevailing opinion was that the world was
flat. So one of the things we have to guard against is just going
out and asking experts for their opinion because sometimes,
unfortunately, the experts are wrong. We’ve got to talk
about the whole record. You can’t just pick and choose parts
of it. You’ve got to look at the forest and tell us
something about what the forest says. Don’t look at the
individual trees and just pick and choose the trees in terms of
describing what’s going on. How is the record evaluated?
What is involved in making that evaluation? I would suggest that
there are two things that OSHA ought to be doing and this is
rather new in terms of the OSHA standard but I think it’s
what we are going to come to. First, we’re not just going to
take everybody’s evidence. OSHA’s not going to be able
to give the same weight to every opinion and letter that it gets
in the record based on just having sent it in to Washington as
part of the open record hearing. We’re going to have to do
some kind of a weight of evidence review, and that means a
scientific review. The scientific issues come back to these
questions - the material impairment of health; irritation of
those caught in the permissible exposure limit standard may or
may not be a material impairment of health, it depends on how
much irritation there is. I would suggest to you that some of the
conditions we’re talking about probably don’t rise to
material impairment of health and that certainly others do.
Terry Murphy’s going to
talk in just a moment about significant risk. I don’t think
we’re going to spend a lot of time on technical feasibility
and cost here. I want to go back a little bit in time, and remind
you how we got to the point we’re at right now, because
you’ve heard people call for some kind of action over the
last couple of years. When the ANSI Z365 committee got together
to talk about upper extremities they set up subcommittees and
asked them to do these things. And when they came back with their
report, they looked at these five characteristics. Now what these
numbers represent - the denominator is the number of literature
reports that they found when they searched the literature, the
numerator is the number that that committee considered to be of
sufficient scientific validity to use in defining what’s
going on, and the percentages represent those fractions. These
are the conclusions about what they found. And I would suggest to
you that we need to address this. One of the things that you
ought to reflect upon about what you’ve heard here today is
how well have we done answering these questions in terms of being
able to quantify these things.
And I see PJ standing up, so
I’m going to stop right there and let her go on to the next
presenter. Thank you very much.
Ms. P.J. Edington, COT: Thank
you, David. I didn’t want to cut out your conclusions in
case you had them, but maybe you can bring them out in the
discussions. Our next speaker is Terry Murphy, and he’s a
labor and employment law partner at Klett, Lieber, Rooney and
Schorling in Pittsburgh. He has litigated a nursing home case
raising the question of whether workplace lifting violates the
General Duty Clause. Terry.
OSHA and Ergonomics
Terrence Murphy,
Esq., Partner, Klett Lieber Rooney & Schorling
I’m going to stand over
here if that’s all right. This is a good spot for the
lawyers - end of the afternoon, last day, right? Last full day.
Pre-cocktail hour. It is a good spot for the lawyers. I’ll
try to move very quickly. My focus is going to be a little bit on
the public policy issues that pertain to lifting and back pain
and whether or not they might properly be incorporated into a
standard. And in particular whether they can be set in any sense
to satisfy the requirements for standard making. David has gone
over, quickly, the rules case law has developed for a group of
substantive principles that set forth the burden OSHA has in
issuing a valid standard. The most prominent of those
requirements is that the Secretary of Labor must first make a
finding that a significant risk is present and, two, that that
significant risk can be eliminated or lessened materially by a
change in practices. The idea is that a standard ought to provide
in the workplace some sort of discernible benefit. So the
Secretary has to show that if there’s some, first,
demonstrable health hazard in the workplace and that the standard
will address it and have an affect on it. I’ll cut to the
chase from my standpoint. I, of course, have lived with lifting
issues for much of the last 3 or 4 years and there are those who
would argue I’ve learned little from the exercise. And they
may be right. But let me give this a try. If I cut to the chase I
will tell you that I regard, at least insofar as lifting and back
pain are concerned, it is a problematic issue in which to engage
in public policy making. There are obvious reasons that OSHA
would want to focus on lifting. I have not been here for all of
this conference but I know that you have heard some of the
things. But back pain is a huge workplace financial and social
problem. I heard David allude to the fact that 80% of adults will
suffer low back pain before they’re finished and 90% of
those people recover in a few weeks. But there’s a small
percentage of people for whom back pain lingers. Most of the
societal cost is attributable to that group of people where back
pain lingers and it becomes a chronic problem. And of course
there’s the simple notion of perception. There’s a
perceived connection between lifting and back pain so we have
gone about the exercise of investigating from a scientific
standpoint working backwards whether lifting can in fact be
connected with back pain. I note for you that it’s an
interesting facet of all this that there’s a little bit of a
‘bunny in the hat’ approach to it. We start with the
perceived notion that lifting must affect back pain. And we know
everyone has back pain so we have worked backward to some degree
to see if what we perceive to be true is true. Low back pain is a
very curious and different kind of problem, in my view, than many
other kinds of problems. I heard an allusion this morning to the
fact that the evaluation of the scientific evidence concerning
lifting or heavy exertion and back pain looks in many ways like
smoking and cancer, or I suppose exposure to a toxic agent in the
development of cancer. I don’t think that’s really so.
I’ll come back to that but I hope what I say over the next
few minutes will amplify and make clear that I don’t think
that’s true.
One; from a medical standpoint
the problem of occupational low back pain is a symptom. Now
I’m speaking like a doctor, which I am not, but when you
talk to any clinician and you use the word injury, they take that
to mean medically detectable damage. The use of the word strain
and sprain in the vast majority of low back pain cases is
inappropriate because strains and sprains refer to diagnosable
damage to ligaments and muscles. And you can put most people that
have low back pain under an x-ray or MRI, whatever test you want,
but you can’t see a darn thing. Whereas if I injure my ham
string muscle you can see palpable damage. You can see bleeding,
the muscle is damaged. Most of the time the clinicians can see
nothing when it comes to low back pain. So there’s no real
medical diagnosis. Strain or sprain are misnomers. What you have
is a symptom and it’s pain, and you can’t see anything
else.
Two; for most people
there’s no definitive, definable cause of event. I gather
you’ve heard a lot about that here over the last few days.
Now sometimes back pain appears to be precipitated by lifting,
sometimes it’s bending or twisting, but often it’s
simply unknown. At the moment I’m suffering from back pain
in my upper back. I haven’t a clue why it started, but it
started about three weeks ago and so I’m taking
anti-inflammatory drugs and the whole works, and I guess
it’s getting better. But much of time, we just don’t
know. I heard also, allusion this morning to the classic example
of two people working side by side, presumably performing the
same task and one develops symptoms while the other doesn’t.
You know, it’s more than that. There are people who are
completely sedentary who develop terrible cases of back pain.
There are people who are weight lifters who don’t. There are
people who sit in trucks, and some people think vibration does
it. There’s lots of difficulties with all of this, and
you’ve heard much about this.
Three; everybody or almost
everybody suffers from it during their adult life. Now
you’ve heard that repeated here many times, but when you
start to talk about public policy, that is important because we
are talking about imposing duties on employers to help alleviate
a problem that most people will suffer from whether they hold a
job or not and regardless of the kind of job they have. So it is
an important issue and you have to take into account the fact
that it appears to be indigenous to the whole population and
evaluate that in the context of whether or not you’re going
to engage in public policy making.
Four; at least with respect to
back pain, about which I think I know something, and I am not a
doctor or a scientist so I’m careful to inform everybody
I’m not sure I know anything about anything else in this
area. But at least with respect to back pain, and I’ve heard
this mentioned as well, but let me say it very clearly - the
problem with disability is distinct from the symptom. In
other words, the duration of disability, the fact of inability to
work and the like appears to have little to do with
symptomatology or tissue damage. Chronic disability, and I heard
this mentioned just a few minutes ago, is strongly influenced,
strongly influenced by psychosocial factors. I suppose there are
those who will say I’m going to try and sum up and over
generalize about a great deal of research, but let me give this a
try. Back pain is a tremendously difficult area in which to do
research. There are reasons for that.
First of all, in the area of
epidemiological research it’s very, very difficult to
measure outcomes. If we’re going to support rulemaking or
standard setting with science then you want your science to have
outcomes that can be measured. On the one hand, if you try to
measure low back pain you are, as I noted a moment ago, measuring
the symptom. You can’t see anything on an MRI; you
can’t see anything on an x-ray most of the time. Obviously,
if there’s a disk problem or a spinal problem you can, but
most of the time you can’t. So what you’re seeking to
measure is a symptom called pain. And we all know that any two of
us may have the same symptoms and describe them completely
different. There are high pain tolerances, there are low pain
tolerances. It’s very, very difficult to measure. If you
want to evaluate pain as an outcome you don't have a lot of
choice but go to people and ask them, "well how’d it
feel?" And your answers will not tell you a great deal about
the similarity of the outcomes between people. So it’s an
individualized experience, it is hard to define, it is hard to
classify.
Research is difficult because
it’s very hard to tell how this symptom of low back pain
which is just a symptom in most cases, transforms itself from
clinical symptomatology to an injury claim in the workplace. That
in and of itself is a complicated process. There was a Boeing
study and if it stands for just one thing, it stands for the fact
that the physical factors alone, the nature of the workplace, job
or the task involved don’t provide a very good explanation
for how symptomatology becomes an injury claim. If you asked me
to describe what the Boeing study stands for in one sentence or a
handful of phrases, I’d say it says that you cannot depend
on physical work factors or physical factors alone in explaining
how symptoms become injury claims.
Finally, apart from
symptomatology, the other thing you can measure I suppose is
injury claims, or workers’ comp claims, but you’re
immediately into the area of disability which very quickly,
particularly as the disability gets longer than some days or a
week, starts quickly to become affected by psychosocial and
economic factors which others have alluded to. You are sort of
left, in the area of back pain research, with two very difficult
research choices. You can try to measure a subjective symptom
that really is not measurable objectively - all you can do is ask
people about how painful something was - or you can resort to
injury claims. We don’t know a lot about how symptoms become
claims, and claims themselves quickly become involved with a lot
of non-physical factors. From a research standpoint, outcome
measurement is very, very, very difficult.
On the input side, it’s
very difficult to measure the actual loading on the spine. We
don’t have ways to actually get inside someone’s spine
and analyze how much load there is. That’s why there’s
a large body of research known as biomechanical research. Since
we don’t have safe, healthful ways to invade the body and
evaluate exactly what’s going on, what biomechanists do
essentially is mathematically model what they believe is going on
in the back. They try to define human motions, movements and
moments through application of mathematical mechanical
principles. It’s also because the inputs into the research
process are not very good. So what you get out of the
biomechanical research are estimates, not actual measurements and
much can be said about biomechanics. It does simplify, of course,
the complexities of the spine and how those forces operate. And
it’s a topic I could talk about for a long time. I
don’t think Dr. Chaffin and the others who spoke would argue
with me too much if I said that it is not proven how the onset of
the symptom of low back pain is causally related to the
mathematical estimate of compressive force that comes out of
those studies. It’s not proven. Put another way, no one has
been able to say that mathematical estimates of compressive force
at a particular point in the back are explanatory of why, all of
a sudden, I may wake up one morning and my back hurts. In fact,
it’s not entirely clear that compressive force on the disk
has a lot to do with the idiopathic low back pain that we’ll
all suffer by the time we’re 65. It’s going to get you
sooner or later.
I said that I thought low back
pain was different than the sort of cancer/smoking example.
It’s different because it’s very hard to measure the
inputs. You can measure who’s smoking and who’s not, or
who’s exposed to a toxic agent in the workplace and
who’s not. Cancer is a detectable disease. You can tell when
people have it. It’s diagnosable.
On the output side you’re
sort of stuck with measuring this thing called pain or injury
claims which inherently bring in a lot of other factors. Now all
of this gives me some pause about the whole body of research in
this area and whether it’s worthy at this point of becoming
the subject of broad based public policy. None of this is to say
that the pain isn’t real and that workers don’t suffer,
or that disability isn’t a major problem, it clearly is. But
if you want to evaluate whether the significant risk issue is a
matter of identifying the health hazard in the workplace, then
formulating a standard that has an effect when you attack it . .
. . if from on the research side, and for these other reasons,
you don’t really know what the inputs are and you have a
hard time measuring outcomes, it’s kind of hard to meet that
test.
Let me offer just a few
conclusions about this significant risk issue. I think it’s
fair to say at the moment that we cannot validate a model of
physical behavior that will predict low back pain. There’s
certainly evidence that back pain is related to work. But
there’s no evidence that it’s singularly work caused.
Two, we don’t know the relative magnitude of lifting and the
causation of low back pain or low back pain disability. We know
it’s a risk factor, but we don’t know how much of one.
Now, that’s important because if we have a physical task
like lifting that everybody does in their life I think, unless
you live an extremely sheltered life, and then you have an
outcome of back pain, which all of us suffer pretty much at one
point or another, it’s going to get us sooner or later. What
you want to do is engage in public policy making and say,
‘we’re going to impose obligations on employers to
solve that problem injury in some measure,’ then what
science ought to do is fix on the relative magnitude of the
workplace task and how much it’s really contributing to the
problems of the particular employees exposed to it. Relative
magnitude is perhaps not so important where you’re talking
about a toxic agent. You can read case law, that I suspect others
here know better than me, where the issue in question is a
standard on if you expose someone to a toxic agent, how much
precision on the exposure do we need in order to engage in
standard setting. Well that’s an easier exercise because
it’s like cancer. We know it’s bad and we can identify
it. And we know what the toxic agent is on the input end, and we
know that’s bad. So the courts have said that we understand
both ends. If there’s not absolute precision on exposure
it’s still fine from a standard setting standpoint. This is
different because everybody does the stuff at the front end and
everybody’s going to get what comes out the back end. So you
need to establish relative magnitudes in order to establish
significant risk.
I’ve been told to wrap up
and I will. It seems to me that the known aspect of all
regulatory acts, and it doesn’t matter whether you’re
regulating employers or doctors or an industry, is dose response
relationships. In this area, if you’re going to say to an
employer, we want you to do ‘this, this and this,’ then
you also ought to be able to say to the employer, if you do
‘this and this,’ we will get these benefits out of it.
Where we can’t identify the relative magnitude of lifting
and heavy exertion to a change in outcomes, we really don't have
dose response relationships. And in my view it is a slippery
slope to start down to engage in standard setting where you
don’t have something approaching that sort of certainty
about if you ask the employer to do particular things, what the
outcomes will be.
Ten seconds on one other
issue. David said we would not talk much about feasibility. I
won’t except to say I think it also is a complicated
problem. I’m not a Washington lawyer. I’m not sure if
that makes me good or bad or indifferent. Probably indifferent. I
work with a lot of different kinds of employers out there in the
hinterlands and they do lots of different kinds of things. The
feasibility of abatement issue strikes me as a very large one.
The automotive industry is one thing. But, for example…just
to give you an example, I work with the last remaining china
company in the United States; the rest have all gone overseas or
someplace where labor is cheaper. But there’s a real good
one left in West Virginia and it’s a unionized plant. The
employer and the union have a great relationship. I don’t
think I’ve done an arbitration there in a decade. It’s
wonderful. But they have employees because as yet there’s no
way to lift wet clay off a mold and have to move it to another
piece of the process with a machine because the clay is wet.
There are people in that plant that lift 160 pounds, 15 times an
hour for 8 hours and they twist to do it somewhat. I’ve
talked with them at length because I’m supposed to be an
expert on back pain now. I don't believe there’s a
technologically feasible way to solve that problem in that
industry. Now I’m not a scientist, but if that is a
microcosm there are lots of problems out there. I think to over
generalize in this area will be an error. Thank you.
Ms. P.J. Edington, COT: Thank
you, Terry. Our next speaker is Randy Rabinowitz, and she is the
Director of the Project on Federal Regulation of the law in
government program and a fellow in administrative law at
Washington College of Law at the American University. Randy wrote
that sentence - it’s a long one. At American University she
teaches a seminar in Occupational Safety and Health Law and Labor
and Employment Law. Ms. Rabinowitz also serves as a union
co-chair of the American Bar Association Committee on
Occupational Health and Safety Law. Randy.
Ms. RANDY
RABINOWITZ, Esq., Director of the Project on Federal
Regulation, Adjunct Professor, University College of Law
I guess those of us without
overheads are confined to this side of the room. I’ve
focused my remarks today on the criteria used by the courts, or
articulated by the courts, for determining whether OSHA has the
authority to regulate a hazard. By way of disclaimer I’d
like to preface my remarks by noting that I do not represent any
party to the debate on ergonomics and have not actually been paid
for my legal advice one way or the other - unfortunately. The
criteria I’m discussing are the criteria articulated by the
courts to determine whether a standard issued after rulemaking is
supported by substantial evidence on the record as a whole.
Obviously the thresholds for initiating rulemaking ought to be
lower than the thresholds for analyzing a final standard, because
if OSHA has all the evidence it needs to support a final standard
in the beginning, then the process of notice and comment in
public hearing would do little to inform the Agency if it already
knew all the answers. OSHA has a history of using the rulemaking
process to adjust standards so that the final standards often are
different from the standards that were proposed.
There are six important
criteria that I’d like to emphasize for OSHA standards. Some
of these have been addressed by some of the other participants.
The first is that an OSHA standard must address a material
impairment to worker health and safety. Second, OSHA must
address a significant risk to worker health and safety,
and the standard must reduce that risk. The standard must
be technologically and economically feasible. OSHA has
indicated that standards should be cost effective. Some
courts have hinted that cost effectiveness may be required, but
no court has ever said that such an analysis is mandated.
Contrary to what you may believe after having listened to the
discussion yesterday, reliance on cost benefit analysis is
prohibited. The Supreme Court has held that OSHA is required to
place preeminent value on protecting worker safety and health,
and to rely on cost benefit analysis would not enable the Agency
to do so. And another point that I’d like to emphasize is in
setting a standard no proof of a causal relationship is
required. Each of these criteria have been amplified on by the
courts. I think everybody agrees that hazards likely to result in
death, such as cancer, may properly be the subject of OSHA
regulation. But OSHA also has the authority to regulate less
severe health effects, such as sensory irritation. And contrary
to what I think you heard before, the courts have…at least
OSHA has indicated and the courts have agreed that where sensory
irritation is accompanied by objective symptoms such as headache
or nausea, then OSHA is permitted to regulate this. That would
mean that there is no requirement that there be a diagnosable
injury as a precondition for OSHA regulation. Courts have also
authorized OSHA regulation of subclinical effects in the absence
of overt signs of disease. Thus, the reversible decreases in lung
function which are a precursor to byssinosis are properly
considered the subject of OSHA regulation.
Significant risk. Under the
benzene decision, before OSHA can regulate a hazard it must
demonstrate that it poses a significant risk at levels commonly
found in the workplace and that the standard will reduce the
risk. When proposing to regulate carcinogens, OSHA often relies
on quantitative risk assessments and constructs dose response
curves. But there is absolutely nothing in the benzene decision
that requires the Agency to rely on dose response data. I think
that’s one of the most important points I’d like to
emphasize. Dose response quantification is not required by the
court decisions. In the case of carcinogens, particularly when
you’re relying on animal evidence, as a practical matter,
dose response data may be required because OSHA has to take
evidence from exposures that are not comparable to those found in
the workplace; the ones that were used in laboratory experiments
of animals, and then extrapolate from those levels to those
levels that are commonly found in the workplace. The only real
statistical tool we have available to make those extrapolations
are dose response curves. Once we’ve constructed a dose
response curve to figure out what the risk is at levels that are
found in the workplace we can also predict quantitatively what
the residual risk would be following OSHA regulation; sort of -
what’s the ‘before number,’ what’s the
‘after number.’ Quantitative risk assessments by
definition give you quantified results. That’s what their
purpose is. But there is no requirement for quantification if the
data that supports regulation is derived from exposures that are
based on information based on workplace exposures. If we have
evidence from the workplace and we’re talking about
regulating in the workplace, we don’t need to extrapolate.
And if we don’t need to extrapolate, we don’t need to
construct a dose response curve. There are a lot of contexts in
which OSHA regulates and OSHA regulation has been upheld where
OSHA has proceeded without dose response curves. The Lead
Standard did not have a dose response curve; the Bloodborne
Pathogen Standard did not have a dose response curve. OSHA
successfully meets the benzene requirement when it regulates
safety hazards and it has never constructed a dose response
curve, to my knowledge, in the regulation of a safety hazard.
Indeed, the 11th Circuit Court of Appeals in Atlanta
recently found that a videotape of a shirt burning provided
significant risk to show that workers wearing flammable garments
were at risk. The court made that finding without inquiring into
how often the garment would become inflamed, and how often
workers would be in those situations. It is also, I think,
incorrect to state that the benzene decision requires that OSHA
demonstrate that its standard will significantly reduce a
significant risk. I think it was phrased a little differently in
the earlier presentation, but it was in one of the slides.
There’s absolutely nothing in the benzene decision that
requires that OSHA prove a substantial reduction in risk. So then
the question is, what does the benzene decision require if it
doesn’t require that there be a substantial reduction? I
think that this should be viewed as a practical limit. The
question is, will the OSHA standard reduce the hazard that OSHA
has identified as significant. If the standard will have a
practical effect on improving the safety and health of workers
and it addresses a significant risk, then the ‘benzene
test’ has been met. Indeed, there was a court case where the
grain industry said that if you reduced grain exposures in the
workplace, the standard that OSHA had set would reduce grain dust
levels in grain elevators but it would still leave a level of
grain dust that was flammable. So the industry said, "since
we still have flammable levels of dust and you can still have
explosions, we haven’t significantly reduced the risk, then
therefore OSHA had not met this so called second prong of the
benzene test." In that case, the court rejected the industry
argument saying that where control measures will reduce the risk
to employees, even though OSHA cannot precisely quantify by how
much, OSHA may proceed with its regulation.
The third point I’d like
to address is that the statute requires that OSHA regulate on the
basis of the best available evidence. Now a lot of the speakers
that have preceded me have talked about what kind of scientific
evidence there is, what kind of scientific inquiry is worthwhile,
what answers we have and what answers we don’t have. All of
that is very important and I’m not trying to belittle it in
any way. But OSHA is engaged in regulatory policy making, it is
not engaged in scientific inquiry. The courts have been very
clear that OSHA is supposed to regulate in the face of scientific
uncertainty. It is supposed to act, and I quote, "when the
‘scientific finger’ points but does not conclude."
The Agency should not, quote, "await the Godot of scientific
certainty before acting." The courts have also recognized
that epidemiology studies are limited tools incapable by their
nature of proving cause and effect. Because of limitations in
study design and the inability to control for confounding
factors, any individual epidemiology study is likely to be of
little value in supporting OSHA regulation. But the courts have
made clear that focusing on the methodological flaws of
epidemiology studies, "fundamentally misconstrues
OSHA’s role. Instead OSHA’s decisions will be upheld if
they are based, on the inconclusive but suggestive results of
numerous studies. By its nature, scientific evidence is
cumulative. The more supporting, albeit inconclusive evidence,
the more likely the accuracy of the conclusion."
One other issue that’s
been discussed here that I think is very important is the role of
non-occupational factors in OSHA regulation, and whether OSHA is
required to measure the relative magnitude of the workplace risk
in comparison with the background risk. In my opinion the answer
is unequivocally, no. The courts have consistently
rejected the argument that OSHA must account for non-occupational
factors before it regulates. To the extent that OSHA bases its
regulation on studies of an effect among workers and it
seeks to reduce that effect by regulating workplace activities,
OSHA acts properly. No court has required that OSHA separate
workplace exposures from non-workplace exposures before. The
leading case on this issue is the case of Forging Industries
Association versus Secretary of Labor, what’s known as an en
banc decision by all the judges of the 4th
Circuit. Usually appellate cases have three judges. This would be
all the judges that are in the 4th Circuit which
covers Virginia, North Carolina, South Carolina, Maryland. In
that decision challenging amendments to OSHA’s hearing
conservation standard, industry argued that OSHA exceeded its
authority by regulating hearing loss, an effect which can be
caused by aging and noise exposures outside the workplace. The
court rejected the argument concluding that the standard does no
more - and I’d like to quote here - "than ensure that a
hearing endangered worker is provided with protection in the
workplace in order to decrease the risk of hearing
impairment." Having identified employee’s
susceptibility to noise, the act does not wait for an employee to
become injured. It authorizes promulgation of a safety and health
standard in the hope that these will prevent the injuries from
occurring. This conclusion, from what I’ve heard, would seem
to apply equally to ergonomic hazards as well. It is also worth
noting that ergonomics and noise are not the only hazards for
which non-occupational factors have been argued to be responsible
for employee health effects. The asbestos industry argues that if
smokers were excluded from epidemiologic cohorts, the risk for
mesothelioma would not be great. And in the late ‘70’s
the lead industry argued that the general population carried a
body burden from exposure to airborne lead from car exhaust
because lead in gas was still very prominent then. That was
sufficiently high that the marginal increase in lead body burden
from workplace exposure was not worthy of regulation.
I would also like to add one
other point which is, there seems to be some assumption that
psychosocial factors that contribute primarily to ergonomic
injuries would place ergonomics outside the scope of OSHA
regulation. I don't think that’s the case at all. If
psychosocial factors are workplace related and arise in the
workplace, they are properly the subject of OSHA regulation. I
think that the trend among states to try and find methods for
providing workers’ compensation for work-related stress
ailments is a good illustration of why that’s the case.
I’d quickly like to talk
about feasibility. The criteria for feasibility are now well
settled. OSHA can impose a standard which only the most
technologically advanced plants in an industry have been able to
achieve, even if only in some of their operations, some of the
time. OSHA can also force industry to develop and diffuse new
technology and it is not bound by the status quo. A standard is
economically feasible if it does not threaten the long-term
profitability of an entire industry, even if the standard is
financially burdensome to some firms. No matter how initially
frightening the projected total or annual costs of compliance,
and we’ve heard some talk about an OSHA estimate of 4.4
billion dollars for the cost of an ergonomic standard, a court
will examine those costs in relation to the financial health and
profitability of the industry and the likely effect of such costs
on unit, consumer prices and firm profitability.
Finally, I’d like to make
mention of a recent decision by the Occupational Safety and
Health Review Commission. As many of you know, OSHA has relied on
the General Duty Clause, which was mentioned early, to cite
employers for ergonomic hazards. In a recent decision the Review
Commission ruled two to one that OSHA’s legal theory is
sound. Two commissioners held that ergonomic hazards, or
repetitive strain hazards in this case, were recognized hazards
that were causing or likely to cause serious physical harm, and
that a process of looking at jobs and evaluating how stress
factors could be reduced was a feasible approach to reducing
those hazards. The Review Commission did vacate the citations in
that case ruling that the Secretary had failed to prove that
Pepperidge Farm had not engaged in the process required of it. I
think the Review Commission’s case is noteworthy for two
reasons, and then I will sit down.
First - the Review Commission
held that OSHA had a legally sound theory for proceeding in
enforcement cases. Second - and perhaps more important in this
forum, the Review Commissioners reviewed the scientific studies
supporting the finding of a hazard and the scientific criticisms
of those studies - an exercise that I don’t think was
necessary to its decision - and two of those Review Commissioners
concluded that an occupational hazard warranting legal action was
present. Thank you.
Ms. P.J. Edington, COT: Thank
you, Randy. Our next speaker is Sidney Shapiro and he’s the John Rounds Professor of Law
at the University of Kansas School of Law. He teaches and
researches in the fields of administrative law and government
relations and is the author of many books and articles.
Particularly he wrote a book that’s called Workers at
Risk that looks at OSHA’s mandate. Sidney.
Dr. FRANKLIN MIRER, UAW: Hi.
I’m the co-arranger of this session. My name is still Frank
Mirer. It hasn’t changed from my comments of this morning. I
think we can really thank the panel for clearly laying out the
issues and even some of the technical debates in a quite clear
fashion, and getting this done on time. Next we will hear from
our discussants. The first discussant will be Peg Seminario of
the AFL-CIO, Department of Occupational Safety and Health. And
since she’s already been introduced, I won’t add to it
except that she has championed OSHA for years and really moved
this issue forward.
Ms. PEG
SEMINARIO,
AFL-CIO
Thank you, Frank. Let me say
that even though I’ve been asked to be a discussant on this
panel of the statutory framework I am not a lawyer. But I have
done a lot of work around OSHA rulemaking issues for the last 20
years. I’m not going to spend a lot of time on trying to
make a case or react to whether or not we have the legal basis
for moving forward with respect to a rulemaking. You’ve all
heard a variety of presentations over the last couple of days. I
would argue that, indeed, this is a significant problem, lots of
workers are affected. Yet indeed there’s evidence of work
relationship. There is evidence that when you intervene with
respect to particular risk factors that contribute to these
musculoskeletal disorders, indeed we do see a reduction in risk
and there are feasible means for taking action on these problems.
Whether or not at the end of day an OSHA standard which is based
upon evidence in a record is upheld is going to be determined by
a court of law. And that, indeed, in this case is the Supreme
Court of the United States. So I don’t think that it’s
worth a whole lot of time to get into a debate amongst ourselves
because we’re ultimately not going to decide that particular
issue. I think we would all agree that in sustaining a standard
in this case given the level of interest, given the level of
debate and controversy around this issue, that indeed OSHA is
going to have to do a very good job in making the case for this
rule for it to sustain the kind of challenges we know it will
see. One point of information, there is already a legal challenge
going on to an ergonomics standard. California recently issued a
standard. That standard has been challenged by the AFL-CIO, the
American Trucking Association and perhaps other folks as well.
Many of the same legal issues will be played out there. So we may
have some early indications as to whether or not, at least under
the State of California law which is similar to the federal law,
that there is a state court determination that the Agency has the
authority to act and to regulate in this particular area.
I want to turn just for a few
minutes to talk about some of the public policy issues. First
starting with the issue of process which Sid Shapiro spoke a
little bit about. The question that I want to put on the table
is, "where should the consideration of all these issues take
place?" I would argue that the best place for the
consideration of all the science issues, the policy issues,
indeed, the legal issues that we’ve put on the table over
the last couple of days should take place in an open public
process. As you’ve heard, there’s a proposal currently
being circulated in the U.S. Congress to essentially take a side
trip on that public consideration to the National Academy of
Sciences and have a group of qualified scientific experts look at
whether or not there is a scientific underpinning with respect to
the work relationship to musculoskeletal disorders. So that
essentially would be taking a few of the folks from the
doctor’s panel and maybe Don Chaffin from the panel this
morning, a few other people, and having them make that
determination. As much as I think they are quite qualified in
many respects and have done terrific work, this is an issue that
is much broader than just an issue of science and the best place
to have that discussion and debate is one where all of us in this
room, and indeed other interested parties, should be present.
That is the reason that the AFL-CIO is opposing at this point in
time any proposals to send this off to a private discussion
between the scientific experts to make that determination. The
issue is simply too important. We want the scientists to
participate. We certainly want the standard to be based on
scientific evidence, but we think it has to be done as part of a
public process. I would also just point out, we’re at the
beginning of the process. We’re talking about the beginnings
of the public discussion around a proposed rulemaking, not the
end of that process. And we think it indeed should be moved
forward.
The other issues I’d like
to put on the table which really haven’t been talked about
but are very, very important for people to think about as we
begin to move forward in this area is if we’re talking about
rulemaking and a regulation, what are we talking about? What
should a standard look like? Who should it cover? Should it be a
general performance standard? Should it be very specific? How do
we trigger the coverage for those standards? Who’s exactly
subject to this regulation? How do we trigger the requirement to
go and look, as Barbara Silverstein set forth as one of the
things we need to be doing, to look to see if there are problems?
What should the triggers be for going to a different level of
assessment with respect to measurement? What should the triggers
be for actually having to take action to control the hazards? And
how should we determine, and what should the benchmark be, for
when an employer has met their obligation under the law to
protect workers with respect to ergonomic injuries and illnesses?
These are hard issues, I would be the first to admit that. But
they’re very important. They’re going to be central to
the development of a rule. I wish we had more time to talk about
those things, based upon the kind of experience that many people
in this room have had, of trying to deal with these problems in
the workplaces where they work, or they represent workers, or are
responsible for safety and health. One of the things that has
been talked about with respect to a rule, and I keep hearing, is
something about a "one size fits all" standard. I don't
know what that means. I’d like to hear people who are
concerned about a one size fits all standard talk about what they
think that means in their minds. I see a standard applying to
workplaces in very different ways depending upon the hazards, the
nature of the operations and the nature of the risk. These are
the kinds of issues that are going to be dealt with in the coming
months, the coming years. Again, as I said, they are ones that
are quite, I think, difficult. They are complex. I would
encourage everyone who is in this room to be involved and
participate in that process and help craft these solutions to
these problems so we’ve got a statutory basis for moving
forward. I believe the process should be one that is open and
public. It’s one that is going to take an awful lot of
people’s involvement, an awful lot of hard work and good
thinking. But it is, indeed, not impossible. And it is very
important that we indeed do try to move forward in this area
because making progress on musculoskeletal disorders and
preventing these injuries is indeed the most important thing we
can be doing today to improve workplace safety and health for
American workers. Thank you very much.
Dr. Frank Mirer, UAW: Thank
you very much, Peg. George Salem who was scheduled was not able
to be here this afternoon. But we are fortunate to have an able
pinch hitter. I don’t know how long ago we found her on the
bench, but Vicky Patton-Hulce is Associate Counsel and Senior
Environmental Health and Safety Attorney for MCI Communications.
She recently assumed OSHA responsibility but has been with MCI
since 1989 as their senior environmental attorney. She is author
of numerous articles and a recently released book, Environment
and the Law, A Dictionary. Vicky.
Ms. VICKY
PATTON-HULCE,
MCI Telecommunications
I feel like the sacrificial
lamb. I mean, here I am the last speaker of the day and probably
with the least amount of OSHA experience talking to you. But I
know that everybody here is here because they’re concerned
about ergonomics. And I’ve learned a tremendous amount
throughout this conference. I’ve always been interested in
this field and actually, as I told David Sarvadi who taught in a
class I took, I wrested my position from someone else because I
felt it needed more attention. I must tell you though that I feel
a little bit like the blind snake, you know, that there was a
blind bunny rabbit and a blind snake. They ran into each other
and the bunny rabbit and the snake both said, pardon me, excuse
me. And then the bunny rabbit said, you know what, I don’t
know what I am. Why don’t you tell me what I am. And so the
snake said, well I’ll tell you, he said, we’ll tell
each other. And so he kind of slithered over the body of the
bunny rabbit and then he says, well, you know you’ve got a
fluffy tail and you’ve got these big long legs in the back,
and you’ve got long ears. And, hey, I think you’re a
bunny rabbit. And the bunny rabbit said, oh that’s great. So
then he goes over to the snake and he pats him down, and then he
gets finished and he says, well, you’re kind of scaly and
you’re low to the ground and you don’t have any legs,
and you slither when you move. You must be a lawyer. So in a lot
of ways, I am sort of blind in this area. But I’ll tell you
I have personally experienced pain in the workplace. And I think
that’s part of the reason why I got precipitated into this.
From MCI’s perspective, most of our injuries are upper
extremity and usually keyboarding injuries as well as slips,
trips and falls. Those are our two major injuries. I think what
we’re most concerned about is to have a system that’s
working - and we try to intervene as early as possible. I really
love what I do because what I try to do is prevent. So my job is
to spot issues and raise them with management and try to keep
them from becoming litigative issues. I think that’s the
best place in the world to be. It’s a lot of consciousness
raising. But when we have someone in our company who’s
complaining about being uncomfortable, then we try to take care
of that. If we get more than a couple complaints, then we know we
have a problem. I’d like for you to raise your hand if you
have been very comfortable in these chairs for these last three
days. I brought a pillow with me, and I haven’t been
comfortable. But I probably have been more comfortable than you
because the chairs tilt back. I could not use these tables to
write on because I’m short. I’d need a table that was
shorter. I actually have used my day timer under my feet to raise
my feet so that I felt like I had my feet in the proper position.
I’m real aware of these factors. We try to intervene early
because we don’t want someone hurt. We don’t want lost
time. We don’t want workers to have to go on disability. We
don’t want them to have an injury. What I am concerned about
in the setting of an OSHA standard is, as Peg said, you know, one
size doesn’t fit all. I mean, I could take all of you people
to different workstations and put you in front of a keyboard and
you would have to have some kind of adjustments unless for some
miraculous reason that workstation fits you. But we’re
addressing the issue. I guess what I’m most concerned about
is why it seems to be that what we’re saying is that unless
OSHA intervenes or unless OSHA sets a standard, then industry
isn’t going to do anything to take care of the workers.
I’m very interested in taking part in whatever rulemaking
goes on. We’ve gone through a lot of different viewpoints
here, but what it all boils down to is that I don’t think
anybody’s saying you can’t initiate a rulemaking, that
you can’t look at these issues. I think that’s one of
OSHA’s responsibilities. What I’m concerned about is
the outcome. I think that that’s what everyone is concerned
about. And I’m hoping that we do have the possibility and
opportunity to participate in whatever rulemaking procedures take
place. So, those are my comments an from industry perspective.
Dr.
FRANK MIRER, UAW:
Thank you very much. Perhaps you want to remain up on the
stage. We’ll take some questions if anybody’s hearty
enough to continue. This was supposed to be the most contentious
session of the whole conference. So we should have sparked at
least one question out of the group. And the first to the
microphone is Scott Schneider. Scott.
Mr. Scott Schneider:
Scott Schneider, Center to Protect Workers’ Rights. Many
years ago with the benzene decision, the Supreme Court said that
they determined that any reasonable person would consider a risk
of injury of 1 in a thousand to be a significant risk, meaning
something that OSHA could regulate. I’m wondering if you
could comment on that in light of the data that we’ve heard
this week on the risk of musculoskeletal injury in the workplace.
Dr. FRANK MIRER:
Whomever. David, you’ve been silent the longest here now.
Mr. DAVID SARVADI:
Actually what the Supreme Court was talking about there was the
risk of cancer from benzene exposure. And when I teach classes
about OSHA and significant risk, one of the questions I always
ask people to answer is, do you think a risk of 1 in a hundred is
significant? And most people will raise their hands. And then I
say, do you think 1 in a thousand is significant? And, again,
most people raise their hands, but a few don’t. And on down
until we get to 1 in a million where pretty much everybody is
saying, well I don’t know. You have to tell me something
more about what I’m going to be at risk for before I agree
that that’s a significant or a non-significant risk. So,
significant risk is not only in the context of the numbers, but
it is in the context of the kinds of injuries or illnesses that
we’re talking about suffering from. And that’s why I
think that it is important for OSHA to get at this question of
the magnitude of the problem, because it is not a question of
people dying. It is not a question of shortened life. Yes, for
some people it is a question of shortened useful working life.
And those things are important. But it is of a different nature
than the kind of cases that we had in benzene and lead and vinyl
chloride over the last 25 years. And I think that’s another
reason why this issue has become so contentious.
Mr. SIDNEY SHAPIRO:
Like David, I use the benzene case. Although for my students I
try to draw another point out of it. The example in the benzene
case is unfortunate because the court failed to recognize that in
addition to looking at the probability, you have to look at the
population at risk. And in characterizing 1 in a thousand as
significant and 1 in a million as insignificant, the court did
that in the abstract. But we all could easily come up with a
hypothetical example where you apply 1 in one million to a very
large population and get a large number of persons who are at
risk. You can apply 1 in a thousand to a small population and get
many fewer people at risk.
Ms. RANDY RABINOWITZ:
We could debate it. I could read it to you. I actually have it
here in front of me. But I think the important points are that
one in a thousand is used as a guidepost often when you’re
looking at individual risk levels. There are other ways of
measuring risk. And one in a thousand is never used as a
guidepost, for example, when OSHA regulates safety hazards. The
benzene decision applies equally to health hazards and to safety
hazards. And because people don't calculate safety risks in terms
of one in a thousand or one in a hundred, or anything like that,
that’s not the way it’s expressed. And I also think it
would be a very novel concept for OSHA to incorporate magnitude
of risk into significant risk determination. The Act sort of
structures it as two separate inquiries - what is the type of
hazard we’re regulating, and then is it of a substantial
enough nature to warrant regulation? So, the second inquiry is
not based on the magnitude and there are a number of things that
OSHA has regulated that don’t involve death. For example,
the Hazard Communication Standard is addressed to a problem that
would not result in death. An exposure monitoring and medical
surveillance standard would be addressed to problems that in
their absence don’t cause death. The safety and health
program standard is by and large addressed to a variety of things
and if it were promulgated, many of those things do not cause
death. So I don’t think that’s a necessary inquiry or
that OSHA needs to incorporate magnitude into significant risk. I
think field sanitation’s another health standard where
magnitude was not put into the calculation.
Dr. MIRER:
Let’s…can we move on, Scott, please?
Mr. Schneider: I just
want to add that one in a thousand risk is for a lifetime of
exposure also, and we’re talking about musculoskeletal
injuries. Ford Motor’s is actually larger than that per
year.
Mr. SARVADI: Right.
Right, Scott, but with back injuries, our lifetime risk is 8 out
of 10. And that’s the natural background rate. And
we’ve got to be able to distinguish that.
Mr. Don Crabtree: A
very brief, brief comment. Don Crabtree from the Sharonville
plant, Local 863. I’m co-chair of the ergonomic committee.
The UAW-Ford is an excellent ergonomic process. And it’s
working. But as co-chair of an ergonomic committee I would urge
standards set by OSHA. When I saw the paper with all the lawyers
that are going to be talking today, I kind of got a little
scared. I learned how hard it might be for OSHA to set some
standards, but I think I also learned that maybe it’s not
quite so hard if people work at it. And just in closing, I’d
like to say that shareholders invest their money in companies,
and that’s important. But the workers invest their lives.
And that’s just as important.
Dr. MIRER Thank you.
Thank you. The person over here.
Mr. Terry Storck: Hello.
My name is Terry Storck. I’m the Safety Manager for Sony
Electronics. And basically to preface my question I’m going
to give an example here of something that we’ve done in our
industry kind of on a voluntary basis, you might think. But
it’s kind of an image approach. And that is the
implementation, of course, of the ISO 9000 series and also the
14000 series. Now when we get to 14000 you might note that
we’re talking about EPA legalities and litigation and those
areas of the standards, of course. These ISO registers, of
course, may not be the same as what an OSHA standard is, but in
fact we haven’t used everything that’s already existing
out there in order to go through this process of quality control
to make sure our business is managed with these standards. My
question is, what do you think the opportunity would be at having
OSHA look at something similar to that for our businesses to
adopt. Instead of saying, "this is the way it’s going
to be," maybe "this is what you as a business need to
do to have a continuous quality control process to improve in
areas such as ergonomics."
Ms. RANDY RABINOWITZ: I
would just say that I think your question raises an important
point, which is I think there’s a difference between a
debate about whether OSHA should regulate, which is what most of
us talked about here, and what, if OSHA chooses to regulate, the
standard ought to look like. It seems to me that I have not
looked at the science. I’m not an expert on it, and so I
leave it to the scientists to decide whether you meet the minimum
criteria. But if all the energy that was being spent on avoiding
rulemaking were put to the task of finding creative solutions to
crafting a rule to address this kind of a hazard because
it’s not exactly like lead, then it might be a more
productive use of everybody’s time and accomplish a lot more
than all of this legal wrangling. Your suggestion to look at that
is a good one.
Mr. DAVID SARVADI: Let
me just comment on this a moment. One of the reasons that I asked
to put this section into this conference was to help you all
understand what the statutory framework is that we are working
in. What I would suggest to you is that we are not at a place in
our statutory scheme to allow us to have the kind of standard
that you’re talking about. There’s a fallacy in the ISO
9000 approach. ISO 9000 does not guarantee you good quality. It
guarantees you consistent quality, and you can have bad
consistent quality or good consistent quality depending on how it
works out. So what I’m suggesting to you is, I agree with
Sid Shapiro that perhaps what we need is to reexamine the
statutory basis that we’re operating in. In fact a lot of
the debate that we’re having is over these statutory
questions.
Mr. Storck: Well what I
might add, is that the HAZCOM standard’s been out there for
years and if we go to some of the smaller businesses,
they’re not even knowledgeable of that. But they are
knowledgeable of our ISO approach and they do want to acquire
that. And when they started acquiring those ISO approaches, then
they become knowledgeable of the HAZCOM standard. So this is
something that we see as a benefit. And if it could be adopted or
joined together, I think maybe that might be something that
industry would take on. I might also add that we voluntarily took
on the ISO approaches. We’ve spent a lot of money in those
areas and we’ve learned a lot about standards that people
had forgotten about or never knew existed too.
Mr. SARVADI: Remind me
who you work for?
Mr. Storck: Sony.
Mr. SARVADI: Sony, yes.
Okay.
Dr. FRANK MIRER: Unless
somebody else is coming up we’re coming to the last
question. Although I would say that one of the things that really
gets under our saddle in the labor movement is the alacrity with
which people, management, bought into this hugely burdensome
paper intensive ISO 9000 program that in many cases doesn’t
do a single thing but outsource the quality control department,
the purchasing department, and yet lifting up a 3-page
questionnaire to look at risk to workers is a horrible burden
much to be avoided. And with that, Bill.
Dr. Bill Marras: Bill
Marras. Ohio State University. I guess I don’t have a
question as much as a comment, specifically for Mr. Murphy. I
realize that this is your job and you’re paid to take the
position that you’re taking, but I just can’t let some
of these topics go by without mentioning. I’m not a lawyer
and I’m not going to argue the legal issues with you, but
I…
Mr. TERRY MURPHY:
You’re blessed.
Dr. Marras: Pardon me?
Mr. MURPHY: You’re
blessed.
Dr. Marras: But I am a
scientist and I do have a problem with a lot of the issues you
were mentioning. I’m not going to take the time to go
through it because you said so many things that I disagree with.
But I take it from your comments that you did not hear my talk
this morning because I went through a lot of the validity, a lot
of the evidence. I made the point that if you look at the big
body of evidence and you look at the epidemiologic evidence, as
well as the biomechanical evidence, there’s a very clear
picture emerging, and we are able to account for a lot of the
variability out there. A couple of specific points. We know a lot
about the work-relatedness of low back pain. We do know how much
is too much - we’ve been able to show that. I just showed
you this morning. We can argue about specific points here…
Number two, there is validity to biomechanics. There are ways to
tell whether you’re measuring the right stuff inside a
person. We do have ways to tell how much is too much, when
you’ve had enough and what types of degree levels you can
expect. And we can quantify the extent of a low back disorder. By
looking at the functionality of an injury, we can quantify it.
It’s not like an MRI. You know, an MRI is simply a picture
of the person. If I give you a picture of a telephone, you
can’t tell me whether it’s ringing. But if I give you
some functional assessment, you can tell quite a bit about the
person. So anyway, like I said - it’s a comment - this is
not the right floor to debate it but I just wanted to let you
know there are very strong feelings on the other side, and we do
know what’s going on with regard to work-related injuries to
the low back.
Mr. TERRY MURPHY:
That’s perfectly fair. I must say that I admire the area in
which you study and I admire much of what goes on in it. I think
I learned something about it. But I think it’s fair to say
when either of us talks quickly about it, we of necessity
oversimplify. It is an elegant and complicated science and
exercise. I suspect we do disagree somewhat. I don’t purport
to keep up with the latest study because I, at this job
fortunately or unfortunately, it forces me to engage in some
other endeavors. But I want to be clear. I certainly do not
regard occupational biomechanics as anything close to an endeavor
that has no utility. I regard that as having a great deal. I will
say, by the way, although this is purely my opinion. I’m
probably foolish to tackle this ground inasmuch as you are an
eminent biomechanist and I’m a labor lawyer. I came away
from much of my exposure to the discipline of occupational
biomechanics, probably forced toward at least one conclusion that
although I could see that I thought it was an extremely valuable
tool with which to compare the physical stress levels of
different ways of doing things in the workplace, it was always
somewhat less clear to me whether it was a validated predictor of
injury. I’m probably terribly oversimplifying now, but that
is sort of where I came out. And I suspect we would disagree on
that.
Dr. MIRER: And with
that note, I want to remind you we’re starting at 9:00
tomorrow. So, starting at 9:00 tomorrow is the most important
presentation of the week, which is mine. I would hope that a few
of you will still be left. And I leave you with the thought that
the definition of a public health disaster is something so bad
that even an epidemiologist can find it. And with that, good
evening.
