OSHA''s experience in litigating ergonomics hazards suggests the agency finds it "rather bewildering" to interpret the link between workplace exposure and musculoskeletal disorders, according to an article by Eugene Scalia, a management attorney with a the Washington, D.C., firm of Gibson, Dunn & Crutcher.
In the article, "OSHA''s Ergonomics Litigation Record: Three Strikes and It''s Out," Scalia pointed to three cases in which OSHA found it difficult to determine the exact hazards employees faced in the cited workplaces an failed to provide a clear plan to correct the alleged hazards.
In one, the 1995 Beverly Enterprises case, OSHA could not establish that lifting causes back injury.
In the second, the 1998 Dayton Tire case, OSHA charged that nearly two dozen jobs in a single facility were hazardous but at trial could not establish the presence of a single hazard.
Scalia said OSHA''s "experts" in the case repeatedly disagreed with one another''s assessments of supposed job hazards; ultimately, their own testimony was thrown out of court under the Supreme Court''s "junk science" test.
In a third case, the 1997 Peppridge Farm case, OSHA and the world''s leading ergonomists could not identify changes needed to eliminate supposed ergonomics hazards, according to Scalia. The Occupational Safety and Review Commission ruled that Peppridge Farm had a good ergonomics program, but OSHA and its experts had simply not been able to tell.
According to Scalia, this track record exemplifies why OSHA should abandon its current regulatory approach to ergonomics.
"Employers should not be commanded to make scientific determinations that consistently have eluded OSHA," said Scalia.
Determining the causes of musculoskeletal disorders and how to prevent them is a task that has thus far eluded many ergonomists, according to Scalia, and the same confusion is evident throughout the text of OSHA''s ergonomics proposal, which is set for final action later this year.
by Virginia Sutcliffe