For many in industry, topping the list of their least favorite provisions in OSHA''s ergonomics proposal is a requirement that employers compensate injured employees at virtually the same rate whether or not they show up for work.
Sooner or later, it was all but inevitable that a subcommittee somewhere in the Republican-controlled Congress would hold hearings on the rule''s controversial work restriction protection (WRP).
Sen. Mike Enzi''s Subcommittee on Employment, Safety and Training took the first whack at WRP April 27. The Wyoming Republican observed that, after reading the ergonomics proposal, he could understand why it has gone nowhere for more than a decade.
"This hearing will focus on one small part of the rule," he continued, "but give a flavor for failure." According to Enzi, WRP should be re-named WCR for workers'' compensation repeal.
Surprisingly, most of OSHA Administrator Charles N. Jeffress'' testimony at the hearing had nothing to do with WRP, but was a repetition of the standard agency argument -- "real solutions" for "real people" -- as to why an ergonomics rule is necessary.
Jeffress eventually made the case that early reporting of musculoskeletal disorders (MSDs) is critical to preventing the ailment and protecting workers. Unlike other OSHA standards designed to prevent workplace hazards, the ergonomics rule only kicks in for most employers after an employee reports an MSD.
"If employees are reluctant to report MSDs in their early stages," he said, "serious MSD hazards in that job could go uncontrolled; placing every employee in that job at increased risk of harm."
Jeffress received strong support for his position from Paul Wellstone, D-Minn., the lone Democrat on the subcommittee to show up for the OSHA head''s testimony.
The ergonomics proposal gives employees who have been removed from the workplace due to a work-related MSD 90 percent of their net earnings and all of their benefits. The WRP provision requires that those on restricted work activity be paid the same amount they received before going on restricted work.
WRP opponents argue that Section 4(b)4 of the OSH Act bars OSHA regulations from superseding or "affecting in any manner" state workers'' compensation laws.
Paul Mattera, vice president and assistant general counsel at Liberty Mutual Group, gives three reasons why his company strongly opposes WRP.
Workers'' compensation is supposed to be an "exclusive remedy," Mattera said in an interview, and he believes WRP adds a new liability, thereby "eviscerating" the notion of exclusive liability.
"Second, we think it harms, if not totally destroys, return-to-work incentives imbedded in workers'' compensation laws," he argued, because it pays workers almost 100 percent of after-tax wages.
Liberty Mutual appears so concerned about WRP that, if it fails to persuade OSHA to drop or modify the provision, a court battle may result. "We styled our comments on WRP in the form of a legal brief," Mattera said. "That was done intentionally."
Opinions differ on whether the rule''s WRP conflicts with workers'' compensation.
"Implementation of the WRP would leave New York''s and, as far as we have been able to discern, other state''s workers'' compensation schemes wholly in tact as a legal matter," said Patricia Smith, assistant attorney general for the state of New York.
In fact, where you come out on the legalities of WRP often appears to have more to do with where you stand on the rule as a whole.
By the end of the hearing, it appeared that few minds were changed by the arguments aired, least of all Enzi''s.
"What was compelling about Mr. Jeffress'' testimony, and his responses at the hearing, was what he did not address: the enormous drain on OSHA''s resources the WRP will cause," an Enzi spokesperson said. "It is troubling that these questions remain unanswered by OSHA."
by James L. Nash