July 14, 2022

Two Conflicting Medical Opinions

Is this following case work related and OSHA recordable?  Read on and see if you agree with this determination.

Incident Description

A worker was struck by a falling object on the hardhat and left shoulder.  Worker was subsequently knocked down in the bucket of the boom truck.  Worker was taken to a local emergency room (ER)  for medical review and assessment.

Other Relevant Information

· Worker was seen and observed in the local ER practice

· The worker’s medical notes showed a prescription that was issued by one ER doctor.

·The same prescription was then crossed out and initialed by another medical professional.

· Worker did not leave the ER with any prescriptions or any other medical treatment, days away or restrictions recommendations.

Applicable OSHA Regulations

Medical Treatment

Regulations

1904.7(b)(3)(ii)

How do I record an injury or illness when a physician or other licensed health care professional recommends that the worker stay at home but the worker comes to work anyway? You must record these injuries and illnesses on the OSHA 300 Log using the check box for cases with days away from work and enter the number of calendar days away recommended by the physician or other licensed health care professional. If a physician or other licensed health care professional recommends days away, you should encourage your worker to follow that recommendation. However, the days away must be recorded whether the injured or ill worker follows the physician or licensed health care professional’s recommendation or not. If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.

Compliance Directive

Question 7-10a. If a physician or other licensed health care professional recommends medical treatment, days away from work or restricted work activity as a result of a work-related injury or illness can the employer decline to record the case based on a contemporaneous second provider’s opinion that the recommended medical treatment, days away from work or work restriction are unnecessary, if the employer believes the second opinion is more authoritative?

Yes. However, once medical treatment is provided for a work-related injury or illness, or days away from work or work restriction have occurred, the case is recordable. If there are conflicting contemporaneous recommendations regarding medical treatment, or the need for days away from work or restricted work activity, but the medical treatment is not actually provided and no days away from work or days of work restriction have occurred, the employer may determine which recommendation is the most authoritative and record on that basis. In the case of prescription medications, OSHA considers that medical treatment is provided once a prescription is issued.

Occupational Consulting Health Physician Assessment

The organization’s consulting physician reviewed the medical notes associated with this case and also contacted the ER practice where the worker was treated.  The consulting physician concluded that the ER’s intent was not to issue a prescription.  This assessment was based upon the consulting physician’s conversations with the ER staff at the applicable hospital.  It was discovered by the consulting physician’ that the other medical professional who crossed out the original prescription was the chief ER doctor.  The ER doctor who wrote the initial prescription was a staff ER doctor.  The consulting physician believed the chief ER decided to not issue the prescription upon subsequent review of the patient before the patient was discharged.  The consulting physician also stated that the chief ER doctor was more authoritative than the staff ER doctor. 

Discussion

In reviewing this case, these were questions that had to be answered:

· How many medical opinions were issued with the prescription?

· Was the prescription considered issued when the first physician wrote it in the medical notes?

· Which doctor was considered more authoritative?

In reviewing 1904.7(b)(3)(ii), two medical opinions were rendered.  The first opinion was to issue a prescription.  The second opinion was not to issue the prescription as validated by the consulting physician.    Although the compliance directive states that once a prescription is issued it is considered medical treatment, it is debatable on whether the prescription was officially issued if the chief ER doctor canceled the prescription before the patient was discharged with his medical papers.  The consulting physician believed the intent of the ER department was not to issue that prescription.  The chief ER doctor is considered more authoritative by the nature of the doctor’s position in that particular ER practice and as further substantiated by the consulting physician.

Conclusion

This case was deemed not an OSHA recordable injury for the following reasons:

· The second physician was considered more authoritative

· The consulting physician believed that a prescription was not issued from that ER practice based upon review of the medical notes and conversation with the ER practice.

· There were no days away or restrictions associated with this case.

May 20, 2022

Locked Knee While Seated in Company Meeting

Is this following case work related and OSHA recordable?  Read on and see if you agree with this determination.

Incident Description

Worker was seated in a standard desk chair placed at a meeting table and participating in a morning crew meeting.  When the meeting was completed, the worker attempted to stand up and was unable to stand up.  The worker felt pain in his right knee and was not able to straighten it and was not able to stand on his own (the worker’s knee “locked up”.)   The worker was taken to a local medical clinic and was prescribed prescription medication and days away from work.

Other Relevant Information

• Prior to this morning crew meeting, the worker sat down with no problems
• Worker stated that approximately one month ago he had worked at his barn at home and had twisted his knee.  However, the worker did not seek or receive any medical treatment for his twisted knee for his discomfort.  The discomfort from his knee twist eventually subsided.
• The worker played high school football and is used to aches and pains and typically just works through his various aches and pains.

Applicable OSHA Regulations

Regulatory Text

1904.5(a)

Basic requirement. You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in § 1904.5(b)(2) specifically applies.

1904.5(b)(1)

What is the “work environment”? OSHA defines the work environment as “the establishment and other locations where one or more workers are working or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the worker during the course of his or her work.”

1904.5(b)(3)

How do I handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work? In these situations, you must evaluate the worker’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.

Compliance Directive Chapter 2

Work-Relationship. Section 1904.5(a) states that “[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment….” Under this language, a case is presumed work-related if, and only if, an event or exposure in the work environment is a discernable cause of the injury or illness or of a significant aggravation to a pre-existing condition. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause.

Section 1904.5(b)(2)(ii) states that a case is not recordable if it “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside of the work environment.” This language is intended as a restatement of the principle expressed in section 1904.5(a), described above. Regardless of where signs or symptoms surface, a case is recordable only if a work event or exposure is a discernable cause of the injury or illness or of a significant aggravation to a pre-existing condition.

Section 1904.5(b)(3) states that if it is not obvious whether the precipitating event or exposure occurred in the work environment or elsewhere, the employer “must evaluate the worker’s work duties and environment to decide whether or not one or more events or exposures in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” This means that the employer must make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness, or of a significant aggravation to a pre-existing condition. If the employer decides the case is not work-related, and OSHA subsequently issues a citation for failure to record, the Government would have the burden of proving that the injury or illness was

Interpretative Letter Dated January 13, 2004 – Determining work-relatedness when the work event or exposure is only one of the discernable causes; not the sole or predominant cause. – Excerpt (follow the link to the entire interpretative letter)

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24724

…Specifically, you ask OSHA to clarify in each scenario you describe; whether the worker who sustains an injury or illness while he or she is engaged in an activity such as walking or bending is considered work-related. As you note, a case is presumed work-related under the recordkeeping rule if an event or exposure in the work environment is a discernable cause of the injury or illness. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause. The preamble to the rule contains a passage that is relevant in determining whether this presumption applies in the scenarios in your letter. The preamble states, in relevant part, as follows:

In applying [the presumption of work-relatedness], the question employers must answer is whether there is an identifiable event or exposure which occurred in the work environment and resulted in the injury or illness. “Thus, if an worker trips while walking across a level factory floor, the resulting injury is considered work-related under the geographic presumption because the precipitating event – the tripping accident – occurred in the workplace. The case is work-related even if the employer cannot determine why the worker tripped, or whether any particular workplace hazard caused the accident to occur. “

In each of the eight scenarios in your letter, the activity engaged in by the worker at the time of the injury (walking, tripping, climbing a staircase, sneezing, bending down) is an “event” which would trigger application of the presumption. In the absence of evidence to overcome the presumption, the injury is work-related. Thus, in the absence of evidence to overcome the presumption, an ankle injury caused by a trip that occurred while the worker was walking down a level seamless hallway at work is work-related, regardless of whether the accident is attributable to a defect in the hall. By the same reasoning, if the activity of walking down a hallway caused the worker’s knee to buckle or to sprain the ankle, the injury is work-related. If an injury or illness did not result from an identifiable event or exposure in the work environment, but only manifested itself during work, the injury is not work-related….

OSHA Consultation

In a conference call with a state OSHA office about this case, information about this case was shared.  The state OSHA stated that since there was not a single identifiable event in this case (e.g., worker was not walking, did not trip, did not fall), then we can surmise that there was not a discernable workplace cause of this knee disorder. 

Conclusion

In reviewing all the facts and circumstances associated with this case, it was concluded that this case not be considered an OSHA recordable injury for the following reasons:

• As part of the evaluations of the worker’s work duties in regard to this knee event, interviews with the worker revealed that he was not engaged in any work activity before the meeting or in a work activity the day before that caused him to twist, fall or otherwise injure his knee.
• The worker’s knee did not “lock up” when he sat down.   It’s apparent that the worker’s knee “locked up” while he was in a sitting position.  The worker was not able to stand up due to his “locked” knee.
• The worker’s “locked up” knee was not the result of the worker walking and/or tripping in the work environment. 

It should be noted that other cases that involve workers walking / tripping in the work environment with subsequent injuries or significant aggravations to pre-existing non-work related injuries occurring are considered work-related and OSHA recordable if medical treatment or days away/ work restrictions were incurred.

May 2, 2022

Hand Pop Not Reported for Two Weeks – Splint and No Medication Prescription Received from Doctor

Is this following case work related and OSHA recordable?  Read on and see if you agree with this determination.

Incident Description

Worker was manually adjusting and bending a damaged section of ½ inch soft copper tubing when he felt discomfort in right hand, after experiencing a “popping” sensation.

Other Relevant Information

• Worker went on vacation after the event occurred and did not immediately report the event to his management.
• Worker reported the event to his management once he returned from vacation and indicated that his hand was still hurting from the work event.

Applicable OSHA Regulations
1904.6(a)

Basic requirement. You must consider an injury or illness to be a “new case” if:

1904.6(a)(1)

The worker has not previously experienced a recorded injury or illness of the same type that affects the same part of the body,…

1904.7(b)(1)

How do I decide if a case meets one or more of the general recording criteria? A work-related injury or illness must be recorded if it results in one or more of the following:

1904.7(b)(1)(iv)

Medical treatment beyond first aid. See § 1904.7(b)(5).

1904.7(b)(5)(ii)

What is “first aid”? For the purposes of Part 1904, “first aid” means the following:

1904.7(b)(5)(ii)(F)

Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes);

Consulting Physician’s Assessment and Review

The company’s occupational health consulting physician, reviewed the medical notes associated with this event and concluded the following:

• The worker incurred a sprain in the hand from the workplace event.
• The prescribed splint was intended for immobilization of the hand / wrist.

Conclusion

This event was considered an OSHA recordable injury for the following reasons:

• There was an identifiable work event in the work environment that triggered the hand “pop”.
• This is considered a new case.
• The worker received a splint from the medical professional to immobilize his hand / wrist.
• Per 1904.7(b)(5)(ii)(F), devices designed for immobilization are considered medical treatment. 
• If medical treatment is rendered [1904.7(b)(1)(iv)], and the event is a new case that occurred in the work environment, then the event is considered OSHA recordable.

Although the company had a policy to immediately report all suspected workplace injuries and illnesses, OSHA recordkeeping rules do not specify a time limit on reporting workplace injuries or illnesses.  However, many states’ Workers Compensation rules require the reporting of workplace injuries or illness within a certain time frame to receive Workers Compensation benefits (e.g., medical coverage for the workplace injury or illness.)  Consult your state’s Workers Compensation guidelines for further details for workplace injury / illness reporting time frames.

If you need assistance or help with OSHA record keeping questions, contact craig.ellis@giarcconsulting.com.