News Roundup

May 30, 2000
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In a recent Occupational Safety and Health Review Commission case, Secretary of Labor v. Arcadian Corp., the commission ruled OSHA's use of the egregious penalty policy was not consistent with the intent of the Occupational Safety and Health Act of 1970.

Following a July, 1992, explosion investigation, OSHA used the general duty clause to fine fertilizer manufacturer Arcadian Corp. 87 times for 87 individual employees' exposures to one hazard. Although OSHRC has upheld OSHA's use of per-employee penalties in the past, in this case it argued that the OSH Act refers to employees as a group and did not intend citations per individual worker.

OSHA does not intend to stop using the egregious case policy, according to an agency spokeswoman. The OSHRC finding is "not a reflection of the entire egregious policy," she says.

That news could be especially bad for firms in Region V (Ill., Ind., Mich., Minn., Ohio, and Wisc.): Inspectors there issued more egregious penalties than any other region of the country in 1995, according to agency records. Of 17 egregious cases issued in this fiscal year-more than in any year since 1989-seven were issued in Region V. None were issued in Regions VIII or X.

In another OSHRC case, the commission ruled that OSHA failed to show that nursing assistants at the nation's largest nursing home chain suffered a significant risk of ergonomic harm from lifting residents or performing other strenuous activities. In 1991 and 1992, OSHA cited five Pennsylvania facilities belonging to the chain, Beverly Enterprises, under the general duty clause for exposing employees to ergonomic hazards.

The Service Employees International Union plans to appeal the decision, says the union's safety director, Bill Borwegen.

OSHA stakeholders are talking about what a safety and health program standard will look like, and predicting an Advanced Notice of Proposed Rulemaking by the spring of 1996. At a two-day stakeholders meeting in Washington last month, labor, industry, and professional society representatives discussed these questions:

  • Should all employers be covered?
  • Should all hazards be covered?
  • How should meaningful employee-involvement be ensured?
  • How can OSHA provide sufficient guidance on what constitutes compliance?

OSHA awards $1.6 million in training grants to 17 nonprofit groups that will train employers and develop job safety educational materials. Groups will address issues including fall protection in residential construction, small business safety and health programs, back injury prevention for health care workers, and logging safety.

OSHA's new injury and illness data collection system is set to be implemented in January, starting with 80,000 employers with 60 or more employees. Individual businesses within specific industry and size specifications will be required to provide OSHA data on worker injuries and illnesses for the agency's use in focusing its activities and measuring its own performance.

Industries selected for data collection, based on their high injury and illness rates or for their OSHA inspection histories are:

  • Manufacturing
  • Ornamental shrub and tree service
  • Local trucking with storage
  • Courier services, except by air
  • Public warehousing and storage
  • Marine cargo handling
  • Airports, flying fields, and services
  • Packing and crafting
  • Refuse systems
  • Metals service centers and offices
  • Scrap and waste materials
  • Groceries and related produces
  • Beer, wine and distilled beverages
  • Lumber and other building materials
  • Nursing and personal care facilities

    By mid-1996 OSHA expects to be able to target inspections based on these data reports, although the plan hinges on forthcoming Congressional budget decisions.

    Clark Refining and Marketing, Inc., has agreed to pay $1.2 million in OSHA fines and improve safety at its Blue Island, Ill., refinery after investigations into a March, 1995, fire and explosion uncovered numerous safety violations. Untrained operators failed to properly lock out equipment during repair of a hydrocracking unit valve, leading to an explosion that killed two workers and hospitalized three others. The company will also perform a process safety management audit of the facility.

    Vice President Al Gore presented the administration's "hammer award" on September 26 to the Voluntary Protection Program Participants' Association Executive Director Lee Anne Elliott for the group's role in helping "create a government that works better and costs less." The 220 U.S. worksites participating in OSHA's Voluntary Protection Program must fulfill rigorous safety requirements and maintain safety and health programs exceeding OSHA standards.

    Attorney involvement impacts some permanent partial disability settlements more than others, according to a study released by the National Council on Compensation Insurance, Inc. Attorneys appear to negotiate higher settlements for "unambiguous injuries" like fractures, while benefits for "subjective" soft tissue injuries don't seem to be as strongly impacted by attorney involvement, NCCI reports. Five to ten percent of workers' compensation claimants retain attorneys, according to the study. But of the high cost PPD claims reviewed by the council, 80 percent involved a claimant attorney.

    The study, "Attorney Involvement and Costs in High Cost Workers Compensation Cases" also offers these findings:

    • Women workers are more likely to retain an attorney than men;
    • Single workers retain attorneys more often than married workers;
    • As workers get older they are less likely to retain counsel. About 84 percent of injured workers under 19 years of age are represented, while 65 percent of workers older than 60 retain attorneys.
    • Median indemnity payments are always higher when attorneys are involved.
    • Median medical costs are generally higher when attorneys are involved.

    For more information call (800) NCCI-123.

    A new record for hours worked without a lost-time accident in the malted beverages industry was set by Coors Brewing Company's Shenandoah brewery in Elkton, Va., on September 27. More than 350 employees worked 2,701,000 hours (three years and nine months) without a lost- time accident. Miller Brewing Company in Albany, Ga., set the previous record in 1991.

    Coors' Shenandoah Occupational Safety and Health Specialist John Wesley says key elements of the facility's safety process are: emphasis on individual responsibility; peer safety coaching; and team safety coordinators who promote safety awareness at all the operation's levels. Coors awarded each employee at the facility $200 cash for the achievement.

    In a bizarre workers' comp fraud scheme, a Kinko's Copies night shift worker staged a robbery attempt and took a bullet in the shoulder, the Wall Street Journal reported in its October 17, 1995 edition. The National Insurance Crime Bureau prosecuted the employee.

    But workers aren't the only perpetrators of comp fraud. A doughnut-shop owner who dragged a wounded worker from the store after an armed robbery was also prosecuted for comp fraud, the Journal reports. He tried to claim the employee was a customer.

    Prostate cancer screening for older male employees can be effectively and economically conducted in the workplace, a report in the October issue of the Journal of Occupational and Environmental Medicine suggests. The report describes a screening program at the Polaroid Corporation that discovered 12 previously undetected cases of prostate cancer among 1,219 men screened. The six-week screening-including digital rectal exams and prostatic specific antigen blood tests-cost the company $72,000, or $6,000 per prostate cancer case detected.

    OSHA will do its part to help shorten the code of federal regulations by rewriting in plain language-or altogether eliminating-some CFR sections it administers. Most changes will be made in the general industry standards section, 29 CFR 1910. OSHA also says it will:

    • Consolidate 13 carcinogen standards to eliminate over 50 pages;
    • Develop "building block" regulatory modules to consolidate separate training records and maintenance provisions;
    • Replace manufacturers' design criteria included in some construction industry standards with a simple cross reference to the appropriate consensus standards.
    • Revise, clarify, or revoke "problem provisions" that have been criticized for being confusing or unnecessary.

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