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OSHA Citation Vacated For Lack of Scientific Support

Volume 2, Issue 2
January 31, 2014
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OSHA-300x300A federal judge sent a message when rejecting an OSHA administrative law judge ruling that a logistics employee’s injury was work-related.

“We are surprised that an ALJ would echo such a position and that the full commission would decline to intervene,” appeals court Judge Frank Easterbrook wrote when he vacated an OSHA recordkeeping citation. “Judges and other lawyers must learn how to deal with scientific evidence and inference.”

The Caterpillar Logistics employee worked in a packing department, taking items from containers and putting them into shipping boxes. She suffered from inflamed tendons in her elbow, called epicondylitis. OSHA cited Caterpillar for not recording her injury as work-related.

Caterpillar objected, saying a five-person expert panel had concluded her injury could not be due to work because both force and repetitive motion are required to cause epicondylitis, but her job only involved repetitive motion.

The panel, three of whom were specialists in musculoskeletal injuries, relied on guidance from the National Institute for Occupational Safety and Health and American Medical Association. It also found the employee was the only person in the packing department who ever suffered the injury.

The OSHA ALJ gave greater weight to the government’s witness, a professor of medicine who said combination of moderate repetition plus pronation (turning) of the employee’s wrist, hand and forearm caused her injury. He didn’t explain why no other worker in her unit had the ailment.

The federal judge said the question really was whether the expert’s “framework is sound, and short of new discoveries about human physiology, only statistical analysis will reveal the answer.”

The law firm of Jackson Lewis said the court’s decision sends a message: “You can see the court alerting all plaintiffs and the Department of Labor that they have to use that scientific evidence.”

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