First Aid or Medical Treatment?
Ensure Proper Recording & Comply
with OSHA's New Injury & Illness
Recordkeeping Requirements
Presented by:
Barry S. Spurlock, CSP
Aspen Risk Management Group
Wednesday October 21, 2015
1:30 p.m. to 3:00 p.m. Eastern
12:30 p.m. to 2:00 p.m. Central
10:30 a.m. to 12:00 p.m. Pacific
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First Aid or Medical Treatment? Ensure Proper
Recording & Comply with OSHA's New Injury
& Illness Recordkeeping Requirements
Presented by:
Barry S. Spurlock, CSP
Safety Resources, Inc.
October 21, 2015
Just to make sure we’re on the same page…
2011 Proposed Rule
• Partial Exemption to Recordkeeping
• Reporting
• Fatalities
• Hospitalizations
• Amputations
• Final rule…largely
2013 Proposed Rule
• Quarterly Electronic Submission of I&I Information
• Annual Electronic Submission of 300A
• Online Posting of Employer I&I Data
• Still proposed rule
What about state plan states?
State Plan Requirements
• 29 CFR § 1904.37(b)
• Recording criteria and how recorded must be identical to federal.
• 1904.37(b)(2): “For other Part 1904 provisions (for example, industry exemptions, reporting of fatalities and hospitalizations, record retention, or employee involvement), State‐Plan State requirements may be more stringent than or supplemental to the Federal requirements, but because of the unique nature of the national recordkeeping program, States must consult with and obtain approval of any such requirements.”
Recordkeeping Updates Effective January 1, 2015
• Still “10 or Fewer Employees”
• NAICS Codes
• List of Newly Covered Industries
Reporting Changes Effective January 1, 2015
• Any In‐Patient Hospitalization of One or More Employees (within 24rs) (Report hospitalizations occurring within 24 hours
• Any Amputation (w/24 hours)
• Any Loss of an Eye (within 24 hours)
• Still must report single fatality (if fatality occurs w/in 30 days of event/incident)
Means of Reporting Fatalities, Hospitalizations, Amputations and Loss of an Eye
• Telephone Area OSHA Office
• 24 Hour OSHA Hotline
• Electronically with Event Reporting Application / Online Form (Coming Soon… still)
Scenario
• Bubba Andretti works for Indianapolis Motor Warehouse (IMW),LLC. While at work, he was killed when he took a corner too fast in a forklift.
• Does IMW still need to call OSHA?
Scenario
• Big Bubba Bourbon, is an up and coming, Kentucky, small‐batch bourbon producer. Two years ago, an employee was hospitalized when a rack that holds barrels of aging bourbon collapsed. Big Bubba did not report this hospitalization to OSHA.
• Did Big Bubba violate an OSHA reporting requirement?
Scenario
• Ricky Bobby is a super star pharmaceutical sales rep for PharmaRite, and must frequently travel by road and by air for his job. In fact, his company issued him a snazzy new Porsche Panamera to impress all the doctors to whom he brought ink pens, sticky notes and nice lunches. While driving the Porsche on a familiar, well‐established road in Indiana…at 110 mph… to see one those doctors, he has an automobile accident and is killed. PharmaRite did not contact OSHA to report his fatality.
Did PharmaRite violate OSHA’s reporting requirement for work‐related fatalities ?
1. Yes, because all work related fatalities must be reported to OSHA.
2. No, because Ricky Bobby’s accident did not arise out of his employment.
3. No, you don’t have to report MVA fatalities unless in a highway construction zone.
4. Yes, a MVA fatality is covered by OSHA’s reporting requirements.
What if Ricky Bobby was killed in a plane crash on a Southwest Airlines (or Delta, US Air, etc.)? (Did PharmaRite violate OSHA requirements?)
1. No, employers do not have to report fatalities that occur while traveling on commercial or public transit systems.
2. Yes, this does not meet OSHA’s MVA exception.
3. Yes, OSHA’s recordkeeping requirements contemplate collection of data from travel hazards.
Scenario
• Al’s Pallet Shop, LLC, is a small wooden pallet manufacturing business in Indiana that usually employs between 9 and 11 employees during the calendar year. While operating a notcher on January 1, 2015, one of Al’s employees, Justin X. Sample, was struck in the head by a board that shot out of the notcher. Justin went to the ER, was checked out and released. Unfortunately, he had headaches for the days that followed, and on January 30, 2015, died from complications related to this work related injury.
Does Al’s Pallet shop have to notify OSHA about Justin’s death?
1. Yes, because OSHA’s revised rule requires reporting of a fatality in these circumstances.
2. No, Al’s averages 10 or fewer employees, and is thus exempt.
3. Yes, OSHA requires reporting of a fatality regardless of when the employee actually dies.
4. No, Justin died more than 72 hours after the incident occurred.
Scenario
• Recall the previous scenario. Presume that Justin returned to the hospital after three days of serious headaches. This time, the medical professionals detected a serious brain injury, and was able to perform emergency surgery and save Justin’s life. (In case you’re wondering…this is not outpatient surgery.)
Must Al’s report Justin’s injury now?
1. Yes, OSHA’s new reporting requirements mandate reporting of a single hospitalization.
2. No, Al’s averages 10 or fewer employees, and is thus exempt.
3. No, Justin’s hospitalization occurred more than 24 hours after the incident.
4. Yes, Justin’s hospitalization occurred within 72 hours after the incident.
• Cal Naughton, Jr., works at Talledega Food Products. On January 3, Scenario
2015, he was dumping 50 pound bags of seasoning ingredients into a hopper to make the company’s version of Shake ‘N Bake. While doing this, he suffers a heart attack and dies. On January 5, 2015, it was finally determined that he suffered a heart attack because he had a bad reaction to an experimental testosterone replacement drug.
• Talledega’s Safety Director, Joe Dokes, advised management that they did not have to report the death to OSHA. Do you agree with Mr. Dokes?
1. Yes.
2. No.
Scenario
• Widget Co Inc., is the world leader in widget manufacturing. It has plants all over the US, and is constantly acquiring smaller widget makers. In a recently acquired, small widget maker in Ohio, an employee, Barry Baffoon, fell from a platform on Friday afternoon. After the incident, he thought he was fine, and declined offers to go to the ER. Later on Friday night, he went to the ER on his own, and was admitted to the hospital. As of the following Monday, he was still in the hospital. Barry called his supervisor on Sunday and told him about the incident. The supervisor contacted Moe Skeeter, an EKU alumnus and corporate safety director for WidgetCo, first thing on Tuesday morning to notify him of the incident.
• Moe informed his boss, the VP of HR, that he will contacting OSHA to notify them about Barry’s hospitalization. He assured the VP of HR that they had not waited too long to report the hospitalization.
May Moe have egg on his face?
1. No, Moe is calling OSHA within 24 hours of him learning about the incident.
2. Yes, OSHA requires reporting hospitalizations within 24 hours of the time of incident.
3. No, WidgetCo is not required to report the hospitalization.
4. Yes, WidgetCo should have reported the hospitalization within 24 hours of knowing.
Scenario
• On Thursday afternoon, Rick Calipari was mixing diphenyl doo doo
and methyl ethyl death at Wildcat Chemical Co., located in Columbus, Ohio. Rick didn’t use his respirator properly, and became ill. He was rushed to the hospital. Fortunately, it appeared he only had an acute reaction and no serious health problem. The ER was busy and he was monitored there until Friday evening, when he was finally released.
• Must Wildcat report this incident to OSHA? Scenario
• John Pitino, also an employee of Wildcat Chemical, habitually failed to wear his goggles and face shield when mixing their product, Fire Acid. Fire Acid has serious, acute health effects. As you might expect, Fire Acid splashed in John’s right eye one day. He was rushed to the ER and an eye specialist immediately determined that he permanently lost vision in the right eye.
Must Wildcat report John’s incident?
1. Yes, OSHA now requires employers to report the loss of an eye.
2. No, John’s eyeball is still in his head.
3. Yes, John was likely hospitalized.
Scenario
• Slim Shady (not the real Slim Shady) works at Uncle Bill’s Machine Shop. While using a press brake, Slim’s left pinky finger gets pinched when the metal he was bending falls on the table where his left hand was located. The tip of Slim’s pinky finger and part of his finger nail were cut off. No bone fragment, however, was lost.
Must Uncle Bill’s report Slim’s injury?
1. No, Slim’s injury is not an amputation.
2. Yes, Slim’s injury is an amputation.
3. No, even if Slim’s injury is an amputation, it did not occur as a result of contact with the point of operation or power transmission apparatus.
Scenario
• Big Dawg Steel recently had two employees hospitalized as a result of a work related injury. Big Dawg’s corporate safety director, Sally Safety, an IUS alumnus, reported the hospitalizations within 2 hours of the occurrence. Later the next day, Sally’s boss, the VP of Operations, asked Sally if the incidents would be posted on OSHA’s website since OSHA had recently passed a new recordkeeping rule. (The VP had read something about OSHA’s new rule in an HR blog.)
• Sally explains to the VP of HR that the 2013 Proposed Rule dealing with electronic reporting and posting of organizational injury and illness data had not become a final rule, and this incident would not be posted to the OSHA website.
• Do you agree?
1. Yes
2. No.
The Recordkeeping Process
Focusing on Work‐Relatedness, New Case and Recordability Determinations
Why ? • Ensure Accurate Injury and Illness Statistics
• Identify Opportunities for Safety Improvement
• Prioritize Safety Improvement Initiatives • Avoid OSHA Citations
• Protect an Organization’s Image
• Internally
• Externally
• Prevent Civil and Criminal Liability Under OSH Act
• Protect the Safety/HR Professional !
§ 17 of the OSH Act
(g) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.
From the OSHA Form 300A Certification....
Sign here
Knowingly falsifying this document may result in a fine.
I certify that I have examined this document and that to the best of my knowledge the entries are true, accurate, and complete.
____________________________________________________
Company executive Title
What are the legal authorities?
Source
Weight of Authority
OSHA’s Recordkeeping Reg (aka Standard, Rule)
Law; Primary Source
Pre‐ambles to Regulations/Standards
Very Persuasive; Secondary Source
Letters of Interpretation
Persuasive; Secondary Source
OSHA Recordkeeping Handbook
Persuasive; Secondary Source
Recordkeeping Compliance Directive (CPL 2‐00‐135)
Persuasive; Secondary Source
Recordkeeping Forms/Instructions
Persuasive; Secondary Source
OSHA’s Objectives
• Identify Events, Exposures and Hazards in the Work Environment Causing Injuries and Illnesses
• Capture More “Serious” Injuries • Prioritize / Justify Enforcement Activity
• Identify / Prioritize Standards Development
• Guide Specific Inspections
OSHA Recordkeeping and Workers’ Comp
• Work‐Related ≠ Compensable • Recordable ≠ Compensable
• Compensable ≠ Recordable
Recordability Decision Process
Injury or Illness?
1904.46
Work‐
Related?
1904.5
New Case?
Work‐Relatedness
Is the case work‐related, or not?
1904.6
Recordable?
1904.7
Et. Al.
29 CFR 1904.5(a)(1) – The Presumption
You must consider an injury or illness to be work‐related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre‐existing injury or illness. Work‐relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in § 1904.5(b)(2) specifically applies. [emphasis added]
29 CFR 1904.5(b)(4) – A Significant Aggravation
A preexisting injury or illness has been significantly aggravated, for purposes of OSHA injury and illness recordkeeping, when an event or exposure in the work environment results in any of the following:
• Death, provided that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure.
• Loss of consciousness, provided that the preexisting injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure.
• One or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure.
• Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure.
Justin X. Sample works at a ABC Manufacturing, and is running late for his shift. He speeds into the parking lot and runs into his co‐
worker’s car fairly hard as the co‐worker was also pulling into the parking lot. Justin hits his head on the window and is injured. Is this injury work related? What if Justin speeds into the parking lot and accidently runs over his co‐worker’s foot after the co‐worker had exited his car in the parking lot. Is the co‐worker’s injury work‐related?
Justin X. Sample has a seizure at work. Is this work related? What if Justin falls and breaks his arm as a result of the seizure? Is the broken arm work‐related?
What if its disco Friday at Justin’s employment?
Steve Salisman travels extensively for his job. He drives a company car to reach all of his destinations. While driving to visit a client, Steve is an accident and is seriously injured. Is this work‐related? What if Stan was driving his own car?
Presume Steve travels to Dubai for a trade show for work. After checking into his room Steve goes down stairs to enjoy some drinks and dinner before turns in for the night. Steve mistakenly leaves the restaurant without paying or charging his meal and drink to his hotel room. Hotel security guards stop Steve, and in the process of doing so, injury his right arm. Is this work related?
Renown chef, Frenchie French, is an employee at a well‐known restaurant. One night, while working, he gets a complaint that his ratatouille is way too salty. He tastes a sample to see if the complaint is legit, and burns his mouth. Is this work‐related?
New‐Case
Is this a new case?
While removing parts on a conveyor line, Joe Schmoe, injures his right shoulder. He simply recalls noticing extreme pain when he grabbed a part. Turns out, Joe slightly tore his rotator cuff and had to have arthroscopic surgery. After surgery, Joe came back to work on light duty, and worked in the widget sorting area. While working there, he started noticing pain in his left shoulder, and eventually had a steroid injection in it. He doesn’t recall any specific mechanism of injury for his left shoulder, and the LHCP feels it is related to overcompensating for his recovering right knee. Is the problem with his left knee a new case? Justin X. Sample has asthma. His work station is located in an area of the production line that uses methyl ethyl doo‐doo (MEDD). This substance, in higher concentrations, will irritate asthma. On one particular day high levels of MEDD were in the air. Justin had an recordable asthma attack at work the last time this happened. Suppose Justin suffers an asthma attack on this particular day as a result of MEDD exposure. Is this a new case? Six months ago Ricky Bobby strained his left shoulder and had to work on restricted duty for several weeks sorting parts. The Employer recorded this incident on its 300 log. Suppose Ricky returned to his normal job two‐weeks ago after his physician provided documentation stating he was fully recovered. He has had no problems with his wrist since that time. While Ricky is lifting a part, he injures the same shoulder again. Is this a new case?
Recordability
To record, or not to record?
General Recording Criteria – 29 CFR 1904.7
a.
b.
c.
d.
e.
f.
Death
Loss of consciousness
Medical treatment
Days away from work
Restricted work or transfer to another job
Significant injury/illness diagnosed by physician or LHCP
First Aid
• Non Rx Meds at Non Rx Strength • Tetanus Immunization
• Superficial Cleaning, Flushing or Soaking Wound
• Band‐Aids, Gauze Pads, Butterflies / Steri‐Strips
• Hot / Cold Therapy
• Massage
• Drinking Fluids
• Non‐rigid Supports
• Temporary Immobilization
• Drilling Fingernail or Toenail, or Draining Blister
• Eye Patch
• Remove Foreign Body from Eye by Irrigation or Cotton Swab
• Finger Guards
• Remove Splinter or Foreign Body from Skin w/ Tweezers (“other simple means”)
OSHA FAQ 7‐10a
• Once medical treatment has been given, it can not be over ridden.
• In order to override restricted duty or lost time, the more authoritative LHCP must over ride before the start of the next shift.
What about restricted work?
• Employee prohibited or unable to perform all routine functions by management or medical
• Employee prohibited or unable to work full shift as scheduled by management or medical
1904.7(b)(4)(i)
• Routine functions: work activities regularly performed once per week
1904.7(b)(4)(ii)
Days Away from Work
• Need One or More Days Away
• Date of Injury / Illness Does Not Count
• LHCP’s Determination of Need To Be Off Controls (not the injured Team Member’s)
Minor Musculoskeletal Discomfort Exception
• Allows an employer to not record an otherwise restricted duty case when the T/M only experiences minor musculoskeletal discomfort, and certain conditions are strictly met.
• Source: OSHA CPL – 02‐00‐135, Ch.2, Sect. 1, Paragraph F
Conditions of the MMD Exception
1. An employee must experience minor musculoskeletal discomfort, and
2. A health care professional determines that the employee is fully able to perform all of his or her routine job functions, and
3. The employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing
Hearing Loss
• 10 dB STS (Standard Threshold Shift), and
• 25 dB Level from Audiometric Zero.
Work exposure does not have to be the sole cause.
Hearing Loss
• Hearing Loss can be work‐related if merely attributed, to some degree, to the work. (Can you get an audiologist to state the hearing loss is 100% non work related?)
• A single exposure is sufficient.
• 1910.95 allows a retest within 30 days
While working on a ladder, Handy Manny is startled when a nearby fan motor – that should have been locked out – suddenly starts. Manny falls approximately seven feet to the concrete plant floor. EMS was called for him, and he was transported to the local hospital on a backboard with his neck in a brace. Manny was very lucky, and X‐rays revealed he suffered no broken bones. Not once did Manny lose consciousness. The only treatment Manny received was being immobilized by a neck brace and backboard, getting some oxygen on the way to the hospital (just to calm him down and keeping him from losing consciousness). He returned to work the very next shift just as if nothing happened. Is this a recordable case?
Tunis Samich works as a bicycle delivery person for Joany Jims Sandwiches. While making one of his deliveries, Tunis is hit by a car. EMTs arrive and evaluates Tunis, ultimately finding he is ok to return to his normal activities. He then gets back on his bike and get the sandwiches delivered; still super speedy. Is this a recordable incident? When Tunis returns to the shop, his supervisor is very concerned about his accident, and even though he was given the all clear by the EMT, the supervisor asks Rob to work in the shop filling the softdrink cup dispenser for a few days to make sure he is really ok before he gets back on his bike delivering sandwiches. The request is purely cautionary. Before assigning this restriction, the supervisor sent Tunis to its occupational medicine clinic for an evaluation. The Physician’s Assistant at the clinic determined Rob could perform all his routine job functions. Is this recordable?
ABC High Speed Electronic Assembly, Inc. (ABC), has an aggressive ergonomics program. As part of the program, they have hired athletic trainers and physical therapist to work on site and help head off ergonomic injuries in their early stage. To do this, employees are encouraged to report symptoms of an ergonomic‐type injury to the athletic trainers or physical therapists as soon as they are noticed. Suppose Justin X. Sample reports some mild pain in his lower back that he attributes to his work. As a result, an athletic trainer prescribes a home exercise program to help Justin. Is this recordable?
Questions? Thank You.
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*This webinar is designed to provide accurate and
authoritative information about the subject matter
covered. It is sold with the understanding that the
publisher is not engaged in rendering legal, accounting, or
other professional services.
*This webinar provides general information only and does
not constitute legal advice. No attorney-client relationship
has been created. If legal advice or other expert
assistance is required, the services of a competent
professional should be sought. We recommend that you
consult with qualified local counsel familiar with your
specific situation before taking any action.
Barry S. Spurlock, CSP
Barry Spurlock is an assistant professor at Eastern
Kentucky University where he teaches safety,
emergency preparedness, and fire-protection
classes. He is also the managing member and
attorney for Spurlock Law, PLLC. Prior to his position in
academia, Mr. Spurlock was an associate in the Louisville office
of Fisher and Philips. He represented employers in a variety of
employment matters involving OSHA, FMLA, ADA, harassment,
and discrimination.
Mr. Spurlock’s practice also included counseling and training
employers on compliance and proactively avoiding litigation
and citations. He is a board-certified safety professional, and
before practicing law, he worked for more than 16 years as an
occupational safety and risk management professional in the
food, steel, and workers’ compensation insurance industries. He
has also served as an adjunct faculty member for Indiana
University since 2002, where he has developed curricula and
taught numerous undergraduate courses in occupational
safety management.