Businesses Say Ergo Rule Would Hurt State Workers Comp System

Eric Oxfeld, president of UWC -- Strategic Services on Unemployment & Workers' Compensation, urged a Congressional committee to stop OSHA's ergonomics standard.

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Testifying Thursday in front of a Congressional committee, Eric Oxfeld, President of UWC -- Strategic Services on Unemployment & Workers'' Compensation, strongly urged Congress to stop OSHA from promulgating an ergonomics regulation.

Oxfeld told the Employment, Safety and Training Subcommittee of the Senate Health, Education, Labor and Pensions Committee that "OSHA''s ergonomics compensation -- which it calls ''worker removal protection'' -- will adversely affect and undermine the state workers'' compensation system."

UWC is the only advocacy organization devoted to representing business on national unemployment and workers'' compensation issues.

During the hearing, Oxfeld described how the proposed ergonomics standard will establish a new federal ergonomics compensation obligation that not only duplicates the purposes of state workers'' compensation, but also is contrary to sound public policy on workers'' compensation benefit design.

"The compensation provisions in the ergonomics standard directly overlap with, and undermine the objectives of, the state workers'' compensation system, and therefore put at risk essential protections for injured workers and employers afforded through workers'' compensation," said Oxfeld.

Oxfeld provided numerous examples of how OSHA''s ergonomics standard will result in a dramatic increase in job industry costs and upset the balance between worker rights and employer obligations established under state workers'' compensation laws.

For instance, he said the worker removal protection and health care professional provision of the standard would frustrate the return-to-work policies of state compensation laws.

"An important goal of state compensation laws is to encourage prompt return-to-work. This goal is accomplished by imposing limits on compensation that preserve a financial incentive for the worker to return to the job as soon as he or she is medically able," Oxfeld testified. "The proposed ergonomics standard conflicts with this objective by creating perverse incentives to stay off the job by essentially providing the employee with full compensation."

Oxfeld was referring to the worker removal protection that will require payment of compensation at 90 percent after-tax earning where the worker is removed from work and 100 percent where the worker is assigned to a lower wage job.

These levels of compensation are higher than benefits under state law.

The worker removal protection is also not subject to any caps like state law, and it is payable automatically regardless of the severity of the injury.

"The ergonomics standard will also impede programs for recovery assessment and rehabilitation by prohibiting the medical care provider from disclosing to the employer information on the employee''s other medical conditions that might have a significant bearing on recovery and job placement," said Oxfeld.

Another point Oxfeld noted in his testimony is that OSHA lacks both the statutory authority to alter state workers compensation laws and the manpower to enforce such laws.

"The OSH Act''s legislative history indicates that Congress withheld from OSHA any power to regulate compensation," commented Oxfeld. "OSHA does not have the knowledge to develop a compensation provision neither the resources to enforce it."

Oxfeld concluded his testimony by urging OSHA to delete the worker removal protection and related provisions in their entirety, and asking Congress to take action to prevent OSHA from promulgating an ergonomics standard with similar provisions.

by Virginia Sutcliffe

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