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The American Insurance Association (AIA) and major partners of the property and casualty insurance industry have mounted a legal challenge to provisions of OSHA''s ergonomics standard.
The group filed suit on Nov. 14 in the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
The group of insurers is arguing that a provision that requires employers to pay injured workers up to 100 percent of their pre-injury salary would conflict with state workers'' compensation laws.
The group said in a statement, "this new compensation scheme, euphemistically-termed the work restriction protection'' (WRP) provision, would mandate payment for medical treatment and lost wages for qualifying musculoskeletal disorders."
"In creating OSHA, Congress deliberately and clearly put workers'' compensation off limits," said Bruce Wood, AIA assistant general counsel. "The Congress later reaffirmed this decision to limit OSHA''s role to prevention of workplace injuries in deciding against imposing federal workers'' compensation standards over 20 years ago. By attempting to create a federal compensation scheme, OSHA obviously disagrees with this policy of federal deference to state regulation of workers'' compensation. But that is a judgment that only Congress, not OSHA, can make."
As proposed, the WRP provision would become effective 60 days after promulgation.
AIA said this provision triggers a new definition that allows a symptom to be considered an injury thus eligible compensation.
Additionally, the group believes the link between work causing an injury is undermined.
"An injured worker could have symptoms caused by outside activity but be paid workers'' compensation. By mandating higher compensation levels for ergonomic symptoms, the rule would also create a ''most favored'' injury category," said AIA.
Wood commented that the rule itself is a "threat to the integrity of the workers'' compensation program, the nation''s oldest social insurance program."
"Property and casualty insurers are strong advocates of workplace safety," said Wood. "Insurers are actively engaged in educating employers on the prevention of ergonomic injuries. The ergonomics rule is far more than a health and safety standard. It is a compensation mandate in violation of the OSH Act."
AIA has coordinated the lawsuit filed by 12 insurance groups: ACE Ltd., American International Group Inc., CGU plc, Chubb Corp., CNA Financial Group Inc., Kemper Employers Insurance Co., Fireman''s Fund, Hartford Financial, Liberty Mutual Insurance Co., Royal & SunAlliance Group plc, PMA Capital Corp., and Travelers Property Casualty Group.
by Virginia Sutcliffe