Circuit Calls for Another Look at Labor Provision

CHICAGO (CN) - The secretary of labor should reconsider employer-reporting requirements for work-related injuries, the 7th Circuit said, vacating a fine against a company that sells parts for Caterpillar tractors and earth-moving machines.

The case arose when a Caterpillar Logistics employee, referred to as "MK" in court documents, began to develop lateral and medial epicondylitis, a condition more commonly known as tennis or golfer's elbow.

MK worked in the company's packing department where she removed Caterpillar parts from bags on a conveyor belt, scanned them and placed them in the proper shipping containers. During a normal day, each employee fills 12 to 14 orders, a task that requires moving around 650 bags weighing about 10 pounds each. No bag weighs more than 50 pounds.

Five weeks after starting her job, MK began to feel pain in her right elbow. When she visited the company medical clinic five more weeks later, MK was placed on medical leave and later diagnosed with epicondylitis in both arms.

Her condition improved during three months of leave, prompting MK to return to work. After a month back at the packing department, however, she asked to be transferred to avoid the returning pain. MK has since recovered.

The Occupational Safety and Health Act requires employers to maintain a log of work-related deaths, injuries and illnesses in which "the work environment either caused or contributed to the resulting condition." The law does not define the phrase "contributed to" in Section 1904.4(a)," and the secretary of labor has issued no guidelines.

After consulting guidelines by the National Institute for Occupational Safety and Health and the American Medical Association, the Caterpillar staff doctor who had diagnosed MK determined that the condition had not been caused by work-related activities. A five-member internal review panel affirmed the decision, and the injury was not logged.

But the Department of Labor disagreed and slapped Caterpillar with a $900 fine. An administrative law judge affirmed the decision after a four-day hearing, and the Occupational Safety and Health Review Commission declined to review the case.

The 7th Circuit reversed on March 20.

The administrative law judge credited the testimony of the Department of Labor's expert witness, Dr. Robert Harrison, who acknowledged that the Caterpillar work environment did not exhibit many of the qualities associated with epicondylitis but concluded that the limited repetitive motion of the environment caused the condition "to a reasonable degree of medical certainty."

Caterpillar had proffered its own medical experts who had come to the opposite conclusion. They cited studies both supporting and rejecting its determination and shown that no other workers during the packing department's history had suffered similar injuries. A constant 30 employees worked for the department during its 10 years of operation, resulting in a 300-person-year experience metric.

The administrative law judge should have explained the decision to ignore Caterpillar's experts and other evidence, the nine-page opinion states.

"That's essential to show why the agency credited one witness rather than another," Chief Judge Frank Easterbrook wrote for a three-judge panel. "This principle does not require elaborate discussion; the goal is not to produce tedious opinions that bury the analysis under an avalanche of detail. ... But it does require the agency to test its hypothesis against competing hypotheses."

Caterpillar's packing-department experience supplied significant support for its determination, Easterbrook mused. Since epicondylitis occurs in about 1 to 2 percent of the general population, Caterpillar should have encountered between three and six cases among the staff, even if work had played no causal role at all. MK was the only case.

But Easterbrook determined that an even more fundamental problem was the vague nature of the "contributed to" standard. It is not clear whether a work environment contributed to an injury means "increased the probability, above background levels, by a statistically significant amount," or requires a stronger or weaker correlation.

"What is certain is that the agency must choose among these possibilities; the judiciary cannot choose for it but must affirm, or not, based on the agency's rationale," Easterbrook wrote.

The very purpose of work-related injury reporting should be reconsidered, the decision states.

"At oral argument, counsel for the secretary suggested that the injury log's function is to help the department determine which occupations are hazardous, so it can concentrate enforcement resources on them and propose regulatory changes that may reduce risks to employees," Easterbrook wrote. "These purposes can be served, however, only if the log contains all injuries. Then the Department can compare rates of injury in a given job with the background rate in the general population; the difference can be attributed to workplace hazards. If, however, employers log injuries only after first deciding that each is work-related, the log becomes less useful as an exploratory or investigatory tool."

The statutory log requirement does not report actual risks, the opinion stated. Rather it only shows whether the employer believes there to be a connection between injuries and the work environment.

Eliminating the work-relatedness requirement would make the log more useful and avoid the potentially high costs of evaluation illustrated by this case. An elaborate board of inquiry at Caterpillar Logistics led to a departmental investigation, a four-day trial, an opinion by an ALJ, submissions to the [review] commissions, and then briefs and arguments before the U.S. Court of Appeals.

"Because saving all of this time and expense might simultaneously improve the log's usefulness, the secretary may wish to take another look at §1904.4(a)," Easterbrook wrote.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit