	U.S. DEPARTMENT OF LABOR PRIVATE  

	OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

	Public Meeting

	Proposed Rule on

	Occupational Injury and Illness

	Recording and Reporting Regulation

	(29 CFR Part 1904)

	9:04 a.m. to 3:48 p.m.

	Tuesday, March 9, 2010

	Conference Room C-5521

	200 Constitution Avenue, N.W.

	Washington, D.C.

	Conference Room C-5521

	C O N T E N T S

                                        

                                             PAGE

Welcoming Remarks

  Jim Maddux, Facilitator.......................3

Introductory Remarks

  Dorothy Dougherty.............................4

	Morning Public Comments

Peg Seminario, AFL-CIO.........................14

Pamela Vossenas, Unite Here....................37

Stephen Newell, ORC............................55

Andrew Langer, Institute for Liberty...........81

Patricia Seeley, Ergonomic Solutions..........103

Jacqueline Nowell,

  UFCW International Union....................125

	Afternoon Public Comments

Chris Trahan, Building and Construction.......156

Schott Schneider, AFL-CIO.....................157

Laura Welch...................................161

David LeGrande,

  Communication Workers of America............182

Karen Harned,

  National Federation of Independent Business.195

Lawrence Halprin,

  U.S. Chamber of Commerce and

  National Manufacturers Association..........222

Sheila Denman.................................267

	- - -

	P R O C E E D I N G S

	Welcoming Remarks

	MR. MADDUX:  Good morning, everybody.  I would like to welcome
everybody to our public meeting for the MSD Column rulemaking.

	Some of you may be familiar with, but some not, and you will hear more
about this as the day goes on, there are two different types of OSHA
rules.  There are regulations and there are standards.

	You are probably more familiar with the standards process where we have
what we call a public hearing.  At a public hearing, you have an
administrative law judge that oversees the proceedings as one of the
features of that, but because this is a regulation, and not a standard,
we have no administrative law judge, so I will be your facilitator for
the day to kind of help keep things on track.

	Just a couple of logistical things.  There is a sixth floor cafeteria
and a fourth floor snack bar almost directly beneath us where you can
get coffee or a snack or something.  Unlike a hearing in the auditorium,
you are welcome to bring coffee and such to this particular meeting.

	There are restrooms at either end of the hall next to the elevators,
and if there is an emergency, we are on the fifth floor.  The emergency
exits are very well marked, and so forth, but I would recommend that you
attach yourself to somebody with one of these DOL ID's and follow them.

	Of course, if something like that does happen, we will all have to
clear back through the security procedures, so it will be a major
disruption in the day. Hopefully, we will get lucky and we won't have
any of that.

	At this time, I would like to introduce Dorothy Dougherty, Director of
our Directorate of Standards and Guidance, and my boss, who will give
some opening remarks.

	Introductory Remarks

	MS. DOUGHERTY:  Thank you, Jim.

	There is a lot of noise or something in this room, but we were all
commenting up here every time we have one of these there is always
something interesting to keep us entertained.  The last one that I did
in Atlanta, our meeting was actually in a tent, so this is a little bit
better, but I am always prepared for something different.  Let me get on
with sort of the formal remarks here.

	Good morning, ladies and gentlemen.  I am Dorothy Dougherty, Director
of the Directorate of Standards and Guidance at the Occupational Safety
and Health Administration.

	On behalf of OSHA, I would like to welcome you to this public meeting
on the proposed rule to revise OSHA's Occupational Injury and Illness
Recording and Reporting regulation, which I will refer to as the
Recordkeeping rule.

	Your participation in this public meeting is greatly appreciated.  OSHA
considers your public participation in this rulemaking, whether at this
meeting or through written comments, to be an important step in
developing a complete and accurate record.

	To that end, OSHA is extending the public comment period until March
30, 2010.  The deadline extension ensures that stakeholders have a full
60 days to submit comments on this rulemaking.

	It also affords those of you attending today's meeting additional time
to incorporate your comments and your views on the information presented
here.  Let me assure you that OSHA will fully consider your comments,
presentations and recommendations as the Agency develops a final revised
Recordkeeping rule.

	With me today are:  Jim Maddux, the Acting Deputy Director of the
Directorate of Standards and Guidance; Ryan Tremain, Project Officer and
Health Scientist in DSG; Robert Burt, Director of the Office of
Regulatory Analysis; Tom Mockler, Project Economist in ORA; and Sarah
Shortall, Project Attorney from the Office of the Solicitor.

	The Occupational Safety and Health Act charges OSHA with requiring
employers to keep records of work-related injuries and illnesses.  Since
OSHA's inception, these records have helped OSHA, employers and workers
identify workplace safety and health concerns by identifying key
injuries and illnesses.

	Data from these records also form the basis for the statistics that the
Bureau of Labor Statistics, or BLS, publishes and are the Nation's
primary source of information on occupational injuries and illnesses.

	OSHA is proposing to revise the Recordkeeping regulation to restore a
column on the OSHA 300 Log that employers would check when recording
work-related musculoskeletal disorders, or MSDs.

	In 2001, OSHA revised its Recordkeeping regulation, including replacing
the old OSHA 200 Log with a revised OSHA 300 Log.  The OSHA 200 Log
included columns for recording certain illnesses and disorders,
including a column for work-related repeated trauma disorders (RTDs).

	Although the RTD column provided useful information on some MSDs, it
did not provide a completely accurate estimate of MSDs because the
column included hearing loss cases and excluded many back cases.

	When OSHA revised the Recordkeeping regulation in 2001, the Agency
divided the RTD column into separate MSD and noise columns.  In 2003,
after delaying the effective date of the MSD column, OSHA deleted it
from the OSHA 300 Log.

	Deletion of the MSD column did not affect employers' obligation to
record work-related MSDs.  Employers are and always have been required
to record work-related MSDs that meet the general criteria in the
Recordkeeping rule.

	The proposed rule would simply put the MSD column back on the OSHA 300
Log and have employers record work-related MSDs in that column instead
of on the one they currently mark.

	The requirements in the proposed rule are essentially identical to the
MSD provisions in the 2001 Recordkeeping rule - employers would have to
check the MSD column instead of the one they currently mark if the case:

	Meets the Recordkeeping rule's definition of injury or illness;

	Is work-related;

	Is a new case;

	Meets one or more of the recording criteria in the existing
Recordkeeping rule;

	And meets the proposed MSD definition.

	The proposed rule uses the same definition of MSD that was in the 2001
Recordkeeping regulation and that BLS has used for years:

	MSDs are disorders of the muscles, nerves, tendons, ligaments, joints,
cartilage and spinal discs;

	MSDs do not include disorders caused by slips, trips, falls, motor
vehicle accidents or other similar accidents.

	Examples of MSDs include carpal tunnel syndrome, rotator cuff syndrome,
De Quervain's disease, trigger finger, tarsal tunnel syndrome, sciatica,
epicondylitis, tendinitis, Raynaud's phenomenon, carpet layers knee,
herniated spinal disc, and low back pain.

	The proposed rule would not change when or under what circumstances
employers must record MSDs on their injury and illness logs.  Also, it
would not establish different recording criteria for MSDs.

	OSHA estimates that the economic impact of the proposed rule on any
establishment would be very small. The costs to employers would be the
time to familiarize themselves with the revised OSHA 300 Log and to
record cases in a different column than the one they currently mark. 
OSHA believes such costs would not pose an economic difficulty for any
establishment.

	OSHA believes that putting the MSD column back on the OSHA 300 Log will
provide valuable information. First, it will improve the accuracy and
completeness of the Nation's occupational injury and illness statistics.

	An MSD column that includes back cases but not hearing loss will ensure
that national statistics more accurately reflect the extent of MSD
problems in U.S. workplaces.

	Data from the MSD column will allow BLS to publish the total number and
rate of MSDs in each industry, not just ones that result in days away
from work as is currently the case.  Having more comprehensive data also
will allow BLS to better analyze the magnitude of MSD problems and
trends across industries.

	Second, restoring the MSD column on the OSHA 300 Log will provide OSHA
with valuable information to assist our outreach, guidance and
evaluation efforts.

	Data from the MSD column would help OSHA to better target its guidance
and outreach efforts to industries that have the greatest problems.  In
addition, MSD column data will allow OSHA to better measure the
effectiveness of OSHA guidelines, such as the nursing home, poultry
processing and grocery store guidelines, in reducing MSDs.

	Finally, data from the MSD column will be useful at the establishment
level for employers and workers alike.  Having an MSD column on the OSHA
300 Form will provide useful information that both employers and workers
can quickly and easily identify at a glance.

	That data will help employers and workers identify whether there are
MSD problems in their workplace.  Moreover, the MSD column data will be
a good evaluation method employers can use in determining the
effectiveness of their workplace programs in reducing MSDs.

	In closing, I want to emphasize the importance of the public
participation component of this rulemaking. The rulemaking is still in
the proposal stage, which means you should not regard it as OSHA's
"final" determination.

	The purpose of today's public meeting is to provide a forum to discuss
the proposed revision to the Recordkeeping rule and to receive oral
comments and additional evidence to assist OSHA in developing a final
Recordkeeping regulation that accurately describes the nature of MSD
problems in the Nation.

	Thank you for your attention and presence here today.  At this time we
will answer any questions you may have about the proposal.

	MR. MADDUX:  I would just like to go through just a little bit of kind
of how we are going to conduct the meeting since it's not the hearing
process that many of you are probably used to.

	We are going to sort of use some of the same process in terms of we are
going to have a session now where we will take questions from the
audience about the rulemaking, and then we will get into each one of the
speakers.

	We have only 10 speakers today.  We are asking that people keep
themselves to something around 15 minutes, so that we will have a
chance, then, to ask a few questions of each speaker, sort of clarifying
their comments or remarks, and depending on how the day goes, and we get
to the end of the day, if there are people who haven't signed up to
speak, but wish to say something, we will give people an opportunity to
do that.

	So, for now, could I have a show of hands of people who are going to be
commenting later, who would like to ask the OSHA panel a question?

	Well, it is going to go pretty fast.

	Is there anybody who is not speaking today, who would like to ask the
OSHA panel a question?  Moving right along.  The first presenter is Peg
Seminario from the AFL-CIO.

	MS. SEMINARIO:  I will get organized here, I wasn't quite expecting to
be on at 9:15.

	MR. MADDUX:  Caught you all by surprise.

	MS. SEMINARIO:  Good morning.  My name is Peg Seminario.  I am Director
of Safety and Health for the AFL-CIO.  Thank you for the opportunity to
participate in this public meeting on OSHA's proposed rule on
Recordkeeping, that would restore the column on musculoskeletal
disorders on the OSHA Log.

	First, let me say that the AFL-CIO strongly supports the proposal to
add the column back to the log. We believe it will serve as a very
useful tool both to help identify and address MSDs in the workplace and
provide more complete information about the extent of MSDs in individual
workplaces, in different industries, and the United States.

	We think the column is needed.  As was pointed out in OSHA's opening
remarks, the whole point of the injury and illness Recordkeeping system
that has existed since the enactment of OSHA is to provide a base of
information on injuries and illnesses both in the workplaces, that can
be used by employers, workers, unions, to identify and address problems,
but that system of recording on the logs has always been collected and
captured by the Department of Labor through the work of BLS in capturing
the information to develop both national statistics, as well as industry
statistics, State-based information, and more specific, information on
particular demographics of types of injuries, demographics concerning
worker characteristics.

	So, the whole system has been established with a view towards getting
the best information we can at a level of specificity that is useful for
addressing injuries and illnesses.

	With respect to musculoskeletal disorders, clearly, they are a big
problem.  The data that we do have available, that comes out of the BLS
survey on the case and demographic data, shows that in 2008, there were
over 317,000 cases of days away from work cases that BLS classified,
coded as musculoskeletal disorders, still making them the biggest single
type or source of work-related injuries and illnesses.  It is clearly a
problem that needs to be addressed.

	Now, some have said that this rule is an ergonomic standard, it's the
camel's nose under the tent.  It isn't.  I mean an ergonomic standard
again is needed, but this is not an ergonomic standard.

	It will provide better information, but it does not create any new
obligations on employers to address or control ergonomic hazards in the
workplace than already exist under existing OSHA authority under the
general duty clause, but it will provide useful information again to
employers, workers, and unions, and the Government, additional
information about MSDs in the workplace that will allow these problems
to be addressed more effectively.

	So, what does the rule propose to do?  It proposes to add a column to
the OSHA 300 Log, to simply identify which recordable injuries and
illnesses are MSDs. As the Agency has pointed out, it doesn't change the
basic recording requirements about what has to be recorded.  It only
requires the identification of those injuries and illnesses that are
MSDs.

	This is not a new concept.  For decades, the OSHA Log required
employers to identify illnesses that were disorders associated with
repeated trauma.  This captured illnesses like carpal tunnel, but also
hearing loss, but it didn't capture injuries, such as back injuries, and
that information that was collected on a national basis under the BLS
survey, coming off of the OSHA 200 Log really was incredibly valuable
back in the 1980s when we saw an increase in the reports of those cases.

	We saw an increase in poultry, we saw an increase in the auto industry,
and it was that information that formed the basis of a lot of the
policies that OSHA implemented back in those years both with respect to
enforcement under the general duty clause, and also with respect to the
initiation of rulemaking back in I believe it was 1989 by then Secretary
Elizabeth Dole.

	So, that information actually was incredibly useful at an industry
level, as well as at the national level for developing interventions,
enforcement policy, and regulatory policy.

	Since 2001, with the Recordkeeping rule, when OSHA in 2001, in the
final rule, had proposed to essentially separate the column on disorders
related to repeated trauma into two pieces, one on hearing loss and then
another on MSDs to capture that information, we thought that that was a
very positive thing to do.

	Again, hearing loss is a big problem, doesn't have enough of a
regulatory base.  The same thing with respect to musculoskeletal
disorders.

	Unfortunately, after the ergonomic standard was repealed in 2001, the
Bush Administration decided that it didn't even want this better data to
address the problems and repealed the column, which has left us even
with less information than we had for decades under the previous rule.

	So, the only information coming forward on a national basis today is
the days away from work cases collected and coded by BLS, and there is
no easy way in the workplace for workers, unions, employers, who are
addressing safety and health, to easily identify, eyeball cases on the
log for addressing musculoskeletal disorders.

	There is no national data, and there is no industry data on the extent
of MSDs.  This rule would address both of those problems.

	So, in the workplace, first, it would provide a useful tool to identify
which injuries and illnesses are MSDs.  As we know from our efforts on
ergonomics over the years, that review of the OSHA Logs in looking at
cases involving musculoskeletal disorders is the first step in many
ergonomics programs.  It is the first step of recommended action under
all of OSHA's guidelines on ergonomics.

	Currently, without that tool, it is required that you have to go
through the logs and search case by case to determine whether or not
these are a problem, and you will hear from a number of unions who have
been involved in that work just how difficult and cumbersome that is.

	The other thing, by having to identify these cases, it will help
employers see how big of a problem they have, where these problems are
occurring, and by doing so, I think increase the focus on the extent of
the problems, and with this information, hopefully be able to identify
cases early in the workplace before they end up in the days away from
work column and address problems before they get worse.

	As I said, on a national level, currently, we only have information on
days away from work cases, and that is only a small part of the overall
injury and illness problem.

	Overall, we know that days away from work cases account for about 28
percent of all reported work-related injuries and illnesses based on
2008 data.  I am not talking about MSDs, I am talking about all
work-related injuries and illnesses.

	But in may industries where we know that musculoskeletal disorders are
a significant problem, the information we have from days away from work
cases is even smaller.  For example, looking at the 2008 injury and
illness data, in poultry, the total injury recordable case rate is 6.1
per 100 workers.

	The job transfer restricted activity is 3.2.   The days away from work
case rate is 0.8, which is only 13 percent of all the injuries and
illnesses in that sector. So, all that we are capturing from a BLS
survey that looks at days away from work cases is only 13 percent of all
the injuries.

	Now, we don't know if that is the exact proportion with respect to
MSDs, but we do know that if we are only getting 13 percent of the
injury experience in poultry, that we are missing 87 percent, and not
knowing what is going on with the cases.

	Similarly, if you look at the data in auto and meat processing, number
of other sectors where we know from experience we have major problems
with musculoskeletal disorders, we see a similar situation.

	Some of this I think reflects the fact that employers are engaging in
medical management practices to try to keep workers on the job, so they
ended up in job restriction as opposed to day away from work.

	But again, because of the nature of the data collection and limitations
we now have, we are capturing none of that experience in any way, shape,
or form, and this is a real problem.

	It was actually something that the NAS recognized in its 2001 report on
work-related musculoskeletal disorders.  One of its recommendation was
that the Labor Department collect more information on non-days away from
work cases.

	While this rule does not address the full data of those, it doesn't
change the BLS survey to start getting information on restricted cases
as opposed to days away from work cases.  It helps provide information
on the total scope of the problem, which we currently don't have,
nationally, as well as in industry level.  It will help better define
the problem, where it is occurring and what kind of interventions are
needed.

	Turning for a moment to the definition of MSDs that OSHA has proposed,
we believe that this is a workable definition.  It captures the type of
disorders that are largely covered by many ergonomic programs.  When we
were looking at this issue back in 1999 and then again in 2000, 2001,
2002, we looked at all the definitions of MSDs or cumulative trauma
disorders that were used both by the Agency in its settlement agreements
on ergonomics back in the 1980s and the 1990s, looked at definitions
that were used in various guidelines, by various employers, definitions
that were used to describe the problem by the National Academy of
Sciences, and what the Agency has proposed here is very, very consistent
with those definitions.

	I think it is important to stress here that what you are requiring of
asking for on the log is not necessarily a diagnostic criteria tied
directly to ICD-9 or ICD-10 codes.  It is basically an identification
tool, and again will be very, very helpful.

	One last point here.  One of the problems that we see in Recordkeeping
overall is a problem with the under-reporting of injuries and illnesses.
 This particular rule is not addressing that specifically, but you do
have other initiatives that are underway at this point in time - your
national emphasis program which I believe will be continuing into next
year, as well, if this final rule takes place.

	Just to comment, enforcement and oversight on recording injuries and
illnesses is important.  I think there is a lot of industries where many
injuries and illnesses are not being fully captured in the Recordkeeping
and on the OSHA Log, and not captured in the BLS data.

	So, I would just encourage the Agency to be looking at MSDs as part of
its overall initiative on Recordkeeping in an attempt to get better and
more complete and accurate information on MSDs.

	So, in conclusion, we support the rule.  It is a first step, a
necessary step in addressing MSDs.  We must identify the problem, the
scope of the problem, both in workplaces and at a national level, and
this proposed rule will give us the tools that we need and the
information that we need to take that first step.

	Thank you.

	MR. MADDUX:  Any questions from the panel?

	One thing that I am going to ask you for, and probably you will hear
this question a lot through the day, is for sort of concrete examples of
people using the data and analyzing MSDs, you know, in sort of real
world circumstances, and what you can tell us about how it actually has
utility in the workplace.

	MS. SEMINARIO:  All right.  I think you will hear from some of the
unions who do that work, I mean they work in workplaces, addressing
these issues, and we have asked them in our discussions preparing for
that, to provide that.

	At the National AFL-CIO, we use the data a lot. We use the date, I mean
every year we put together a big report, death on the job, the toll, and
neglect, looking at a whole variety of information and data, and it is
very frustrating that you can't get a picture of what is going on with
the bigger source of workplace injuries and illnesses, and we try and
make some estimates of what the total problem might be, looking at
proportions of MSDs are this part of the problem in days away from work
cases, and what they might be with respect to total cases.

	But you really can't get full, complete information, and one of the
things that I would suggest to both OSHA and to BLS, once you begin
capturing this information is to provide more of this information at an
industry level with both numbers and rates.

	It is very difficult going through even the BLS data that is captured
now and reported.  You get a lot of number data, but you really can't
get a lot of rate data, so you have this dysjunction really, looking at
the total cases that are reported in rates by industry, and the days
away from work rates, but then you get into specific industries and
types of injuries, and you basically get numbers.

	So, trying to get a better handle on injuries overall, but particularly
if you are then able to capture the information on MSDs, of providing
rates as you used to when you had the column on disorders associated
with cumulative trauma would be very, very helpful at getting
information on what is really going on across industries, what is going
on over time.

	So, that is how we would use this data at a national level to get a
better handle and a more complete picture in time, but also in trends
over time.

	Thank you.

	MR. MADDUX:  We will be sure to pass on your recommendations on the BLS
survey to the folks there.  Kate Neuman, I think is with us today, so
she is hearing them first hand.

	MS. SHORTALL:  I have a few questions, too.  Ms. Seminario, first of
all, thank you for appearing today. Also, do you happen to have a
written comment of your presentation that you would like to enter into
the record?

	MS. SEMINARIO:  We are actually preparing more detailed written
comments, which we will be submitting to the record that will be similar
to what I outlined, and some more sort of analysis of some of the data
by industry as to how the days away from work cases, what proportion of
injuries they represent, what we are missing by only looking at that
particular indicator with respect to MSDs.

	MS. SHORTALL:  I have a couple of questions to ask.  The first one is
one of the comments we have heard from particular employers is that it
is very difficult to identify an MSD if our definition includes
subjective symptoms such as pain, tingling, numbness.

	How do the industries that you have members working in go about
currently now identifying MSDs?  What do they use, do they use
subjective symptoms, and if they do, how do they end up using them?

	MS. SEMINARIO:  I can't speak to specific employers.  Again, that is
not something that we, at the AFL-CIO, engage with individual employers.
 I do know from all the work that we have been involved with over the
years on ergonomics, that looking at what is captured and what is looked
at in ergonomics programs is that people, they do look at subjective
symptoms, and if you go back to your old recordkeeping rule prior to
2001, that was the definition, the definition that was recordable, was
basically if you had -- well, both some objective findings, but you also
had symptoms related to if it had resulted in medical treatment or
restriction, so this has been in place for 40 years perhaps.

	So, I think, yes, there are probably some difficult areas here, but the
fact of the matter is, is that these are the kind of criteria and
definitions that have been used forever under the OSHA recording
systems, and so while, you know, again, this isn't necessarily a strict
diagnostic criteria, it is, again, trying to give the employers the
guidance, the criteria that should be used to at least try to identify
these problems.

	MS. SHORTALL:  When your members report pain or other types of
subjective symptoms of MSDs, are employers generally referring them to
health care providers for examination?

	MS. SEMINARIO:  I couldn't say as a general matter.  I think some
employers do, and I think some employers don't, and I think you will
hear that from some of the individual unions, and the practices I think
do -- I think the practices do vary.

	One of the things that we have seen in recent years, and it is not just
related to MSDs, it is related to the whole issue of injury recording. 
It is more and more of an attempt to keep things off the OSHA Log, and
it doesn't matter if it's an MSD or anything else.

	So, we have workers who don't come forward, or if they do, an attempt
not to provide medical treatment. We heard this actually at a
congressional hearing that occurred I think two years ago from the then
President of the American College of Occupational Environmental
Medicine, who came forward and said that their members were being asked
and told not to provide medical treatment for cases, and again, not
specifically MSDs, so that they wouldn't go on the OSHA Log.

	So, I think that there is a lot of things that are going on in
workplaces around injuries and illnesses in the recording of those, and
that impacts obviously MSDs as it does everything else, and we need to
be aware of that.  This rule won't fix that, but again, this rule will
at least allow us, for what is recorded, to get a better sense of the
identification of which of those are MSDs.

	MS. SHORTALL:  Are your members going through injury and illness logs
to try to identify MSDs, or have they determined it is too difficult for
them to glean the information from the log?

	MS. SEMINARIO:  I think what you will again hear from some of the
unions who attempt to do that, they try, but trying to get a sense of
exactly what is considered to be an MSD, and you can use the criteria
off of the BLS definition, and a number of the unions use that in trying
to identify which cases are MSD.

	But the fact that we don't have an ergonomics standard anymore, we
haven't had a requirement on the log, that there hasn't been any clear
guidance.  So, one of the things that I think is important, that with
this rule, in coming out with a new definition, is for OSHA to provide
as much clarity as they can, training to employers, examples, so again
we are capturing as much information as we can.

	Is it going to be perfect?  No, but right now we don't have anything.

	MS. SHORTALL:  So, when they take the criteria that could be used for
identifying MSD, is like BLS uses, have they been able to, in looking
through logs, come up with --

	MS. SEMINARIO:  I think it is very difficult because what is on the log
itself is generally, there is not a lot of information.  I mean
basically, in some cases, they are very good, and in some cases, they
are really pretty bad, and then you have to go to the 300 to look behind
that.

	So, no, I don't think it's an easy task at all, and again you will hear
from every union who has been trying to do this both for workplace
activities, as well as for research, as to how time-consuming this is.

	By simply putting the column on the log, I think it will help focus
employers, you know help union, et cetera, at the time the injury is put
on the log to make the determination rather than having to figure out
after the fact whether or not that is the case.

	MS. SHORTALL:  One last question.  Is your union or other unions, are
they providing training for their members on how to identify MSDs or how
to track injuries and illnesses in their work environments?

	MS. SEMINARIO:  We, through the AFL-CIO, my colleague Bill Kojola has
developed a course on recordkeeping in conjunction with our National
Labor College, which we offer to union stewards and others, which is
trying to explain to people what actually has to be recorded, how you
collect that information, as well as how you analyze that information.

	It is not specific to MSDs, but it is really on the whole system of
recordkeeping and what is required.  I think one of the things that has
happened with the promulgation of the recordkeeping rule, at the time
that the ergonomics standard was repealed, and then removing the column,
that a number of things happened, first of all, that took attention off
of MSDs, because you no longer had to look at that on the log, and there
was no longer an ergonomic standard, but with the criteria changes in
the 2001 recordkeeping rule, that narrowed the definition of what had to
be recorded particularly with respect to MSDs, but also the introduction
of the concept of a new case and whether MSDs, because they actually,
many of them are cumulative, they do go on over time, I think there has
been a lot of confusion over time as to actually whether a new case has
to be on the log or doesn't have to be on the log, and there wasn't the
kind of focus on the implementation on recordkeeping by the Agency in
2001 and beyond, and that with this rule change, it would be very
important to get out there and do some education about what is require,
refresher training on what is a new case, what is not a new case,
because we see very different practices among employers as to what they
consider to be a new case, what they consider to be something that is a
recurring case, particularly in the area of MSDs.

	You can put the logs of two employers side by side, and get very
different representations as to what has to be recorded.  So, clarity
from the Agency about where those lines are, and examples, I think would
be very, very helpful to employers.

	MS. SHORTALL:  Thank you.

	MR. MADDUX:  Thanks, Peg, appreciate it.  In your written comments, if
you have any ideas about what components of outreach programs would make
sense, we would certainly welcome those.

	Our next speaker is Pamela Vossenas from Unite Here.

	MS. VOSSENAS:  Good morning, everybody.  Unite Here is very happy to be
here and have the opportunity to give our perspective  on the value of
adding an MSD column to the OSHA 300 Log.

	I am going to have a hard time doing this because I need to look over
my shoulder, but these are the reasons that we think adding an MSD
column would be helpful.  We feel that unless you can count an injury,
then, you can't prevent it, and unless you can count an injury, you
can't find solutions to mitigate the damage that that injury causes.

	So, without having an MSD Log, our experience shows that it is very
difficult to get an accurate accounting of these types of injuries.

	Next slide.

	For all of us who have either a concern or responsibility, a legal
mandate to protect workers' health and safety, then, the ability to have
this information is essential.

	Next.

	As you all know, musculoskeletal disorders are disabling injuries. 
They are preventable, and I would say as the union that has done a
significant amount of research on hotel worker injuries, particularly
housekeeper injuries, the real tragedy is that we are way behind the
times.  We are way behind the times in the service sector to identify
these injuries, way behind the times to prevent them.

	We are really way behind the times in having these injuries being
diagnosed accurately, and the real tragedy is, is that remedies do
exist, and there seems to be a significant problem between identifying
and then solving these injuries.

	Next.

	So, what we found looking at BLS data for a code 72.111, which is
hotels and motels, is that there is higher rates of incidence of days
away from work, restricted days compared to private industry.

	Next.

	Particularly in the types of injuries that are described, using BLS
terminology, that would be an MSD column if we had one.

	What I think is particularly disturbing about this slide is that these
are the only two statistics where hotel/motels don't have a higher
injury rate than private industry, which is good news if it is accurate,
but I really question if they are accurate, because these are the types
of injuries that require a medical diagnosis, and our experience at
Unite Here is that you have a problem with workers being afraid to
report injuries, we have problems with employers intimidating workers or
using disincentive programs like Safety Bingo to discourage workers from
reporting.

	When workers do get to go to a physician, we have problems with them
being diagnosed as work-related injuries to begin with, never mind
musculoskeletal disorders, and that has been raised at meetings of the
Academy of Occupational and Environmental Medicine conferences.

	We also have a problem related to this is when workers are injured, and
there is difficulty in finding them what is called light duty,
restricted days of work employment, and so workers either work hurt or
they don't work at all, and they lose income from that.

	If we could just go back, some of the research we have done, and in
responding to the question you had of Peg Seminario about the ability to
identify as a union these types of injuries.

	We have actually had to hire additional staff. We have been at the
appreciative mercy of interns to be able to record, you know, transfer
from OSHA logs thousands of entries into a database and analyze them.

	What we have found is that there seem to be a pattern that, for sprain,
strain, or tear injuries, those are the injuries most likely not to have
any event exposure information at all on the log.

	So, either the employers don't understand what causes these types of
injuries, but they are certainly not getting that type of information
put on the log.  So, if we had a column, I think it would be a way to
focus on those injuries.

	We would identify them as MSD, and then we would know what causes MSDs,
so I think that would solve this problem that we are finding.

	Next.

	So, then, the concern is, you know, if we have these higher rates in
hotel and motel industry, what is causing them.

	Next.

	Bill Marras from the Ohio State University, who you are familiar with
the lumbar motion monitor, did at least three evaluations of hotel
housekeeping.  This is what he found.

	There are high-risk jobs for low back disorders, they had higher rates
of probability of a low back disorder than truck door assembly, than car
assembly, and even patient handling.  The only thing that they didn't
exceed in his studies to date were warehouse work, which we all know has
very high rates of musculoskeletal disorders.

	Next.

	This is an example of some of the data we have been able to generate
using OSHA logs, and again we found for housekeepers, that sprain,
strain, tears are a leading cause of injury.  Overexertion has been the
leading injury offense, and worker motion accounted for 40 percent of
injuries.

	Next.

	Most recently, in the current American Journal of Industrial Medicine,
where we were able to do a very large-scale study using OSHA 300 Logs
from full-service hotels that we represent in the U.S., we focused on
not just housekeepers, but additional job titles that are primarily food
service workers in hotels.

	Next.

	We used the BLS definition of MSDs and we categorized our injuries. 
There were approximately 2,800 injuries into three categories of MSD,
acute trauma, and other.  We actually needed additional resources to do
this.

	We had a health and safety professional go through the logs and
categorize all of those injuries as either MSD, acute, or other.  This
just points to the need for a column.  If we had a column, we wouldn't
have needed that extra resource.

	Quite honestly, we don't have those types of resources in our union,
and most unions don't have those types of resources.

	Next.

	So, in the study, we found that housekeepers had the highest injury
rate, but more specifically, for the purpose of this hearing, they had
the highest rate of MSDs.

	Next.

	For the entire study, for those workers who had an MSD, this is the
body parts that were affected.

	Next.

	This is one of the conclusions of our study.

	Next.

	So, just recently, in the past few months, we took a look at the food
service workers employed in the hotel and expanded the descriptive data
from the logs.  We took a look at those and this is what we found.

	Next.

	So, this is where, let's say, the damage was done.  We can see that
compared to BLS data, that all three job titles had higher median of
days away from work and restricted days than we find in the BLS data.

	You can see they are significantly higher, you know, in some places,
they are four times as much, twice as much, and so the question is I
think for all of us is why are they so high and what are we doing about
it.

	I think this is information that, you know, OSHA needs to pay attention
to, employers need to pay attention to, and we, as the union, are paying
attention to.

	Next.

	This is where the guessing game begins.  You know, we have an idea, you
know, we know that sprains, strains, and tears, you know, this is a
guessing game for trying to assess what does it look like for MSDs in
the workplace.

	So, this is what was identified as sprain, strain, or tear injuries. 
You can see that banquet servers had the highest, but still these are,
you know, 22 percent, that is basically 1 out of every 4 workers.  That
is a serious amount of injuries that could be reduced or prevented.

	Next.

	So, banquet servers have 25 percent of their injuries occur to the
trunk, dishwashers 19 percent, 13 percent cooks.  So, again, this is in
line with what we know about MSDs.

	Next.

	If you total these, you will see banquet servers 24 percent
overexertion, dishwashers 24 percent, and 19 percent cooks, kitchen
workers.

	So, again, if 1 out of every 4 injury is related to overexertion, then,
we have a problem.

	Next.

	Worker motion or position looks like cooks and kitchen workers were
more related to acute trauma, because that was the highest type of
injury that they had, but banquet servers 50 percent, those we know is
more related to overexertion, and dishwashers, stewards, a good chunk of
those would also be overexertion.

	Next.

	So, this is the type of data we would like to be able to have OSHA and
the BLS report to us.  This is the type of data we would like to be able
to see come up every year, and it would be incredibly important to be
able to have that data.

	This is extremely labor-intensive and it's as accurate as we can be,
but OSHA could do far more.

	Next.

	So, the MSD column would have a great benefit to employees as these are
disabling injuries.  It would have a great benefit to all of those who
have a responsibility to do workplace injuries, and based on what we
have seen on the logs, any revision of the recordkeeping rule must be
accompanied with outreach to employers and to unions as to how to make
this new addition feasible and make sure it is being implemented and
accurately so.

	Thank you very much.

	MR. MADDUX:  Thank you, Pamela.

	Does the rest of the panel have a question?  I will start off I guess. 
Obviously, you have done a very detailed analysis here.  I am assuming
that this analysis is sort of focused on the hotels and motels where you
have workers that you represent?

	MS. VOSSENAS:  Yes.

	MR. MADDUX:  So, it is not really like a representative sample, but
it's a study you have been able to do on --

	MS. VOSSENAS:  It's a study we have been able to do and the article
published in the American Journal of Industrial Medicine was a
collaboration between the Unite Here and four leading occupational
health centers.

	I would like to point out it's Lowell, University of Massachusetts,
University of Illinois, Chicago School of Public Health, University of
California, San Francisco, and Hunter College School of Urban Health.

	So, we had I would say the cream of the crop as co-authors, and
although maybe an unrepresented sample, it's the only study that has
ever been done on the hotel industry.

	MR. MADDUX:  I am not saying that it doesn't have wide use, I just
wanted to make sure that we all understood what it did represent.

	MS. VOSSENAS:  Right.  Well, it does represent workers who are
currently employed in the hotel industry.

	MR. MADDUX:  Obviously, a very huge amount of work going into coding
all that data and getting it into a database, and all that.

	You don't have to give us this today, but in your written comments that
you submit later on, if you could give us some idea of sort of the cost
and the time involved, you know, your estimates, that would be I think
very, very helpful.

	MS. VOSSENAS:  Sure.  I complain to my bosses about it every day.  You
want human costs?  I could try to assess that.

	MR. MADDUX:  I thought you might have some general idea.

	The other question I have is obviously, this is a study that is
oriented around the hotel and motel industry as a whole.

	Do you or people at the local level, do any of these sorts of analyses
for MSDs at individual hotels?

	MS. VOSSENAS:  We use this data for individual hotels.  We obtain OSHA
logs for individual hotels.  We use this data to identify what type of
changes are needed in the workplace.  As a union, we use these as part
of collective bargaining.  As a union, we use it as part of training.

	So, this information is critical.

	MR. MADDUX:  So, you have found it to have utility at an individual
establishment?

	MS. VOSSENAS:  Extreme utility, yes.

	MR. MADDUX:  Okay.  I guess my last question is just did you bring a
hardcopy of your PowerPoint presentation?

	MS. VOSSENAS:  No, but I can make that available as part of my
comments.

	MR. MADDUX:  After we get through this session, we will take a break
and maybe we can work something out.  We will definitely need that for
our exhibits.

	MS. VOSSENAS:  Sure.

	MS. SHORTALL:  I just have one question I would like to ask.  There was
a comparison of the mean days of work between BLS --

	MS. VOSSENAS:  The median, yes.

	MS. SHORTALL:  The median, between BLS and the study that you did.  In
your study, did you come up with any reasons at all for why you felt
that there was such a disparity between your numbers on days away from
work and BLS?

	MS. VOSSENAS:  Well, that is a good question.  I don't really know the
answer to that question.  I don't know, maybe the sampling that is done,
you know, in hotels, I don't know if the sampling frame is different
from the BLS, what you are looking at in hotels.

	I mean one point to note is we looked at hotels from the five leading
hotel companies, so that is Marriott, Hyatt, Hilton, Starwood, and
Intercontinental. These are full-service hotels.  These are the hotels
that have six pillows on a bed, triple sheeting, dubais that weigh 7 to
15 pounds, 100-pound plus beds, increasing number of amenities.  Perhaps
this new level of luxury is extracting a toll that is not getting
captured in the BLS data.

	MS. SHORTALL:  That's very interesting.

	MS. VOSSENAS:  The other thing I want to point out about the value of
these findings, and I also want to note that the analysis was not done
by Unite Here, the analysis was done by an independent contractor
statistician affiliated with University of Illinois School of Public
Health.

	So, we assembled the database and just sent it off, and they did the
analysis.  But the findings also represent findings about food service
workers that you don't get because the food service industry isn't
required to maintain OSHA 300 logs.

	I think all the more need for an MSD column, because if we can identify
what is happening in kitchens in hotels, very likely we are not going to
be that far away from what is happening in the restaurant industry.

	There is 1.5 million workers in hotels and motels, but I mean roughly I
know there is at least 8 million restaurant workers in limited and
full-service restaurants in the U.S.  So, you could have a far greater
impact on more than one industry if you had a more accurate ability to
record MSDs.

	MS. SHORTALL:  Just one more question.  What type of training do you
give to your members about recordkeeping, how to look at OSHA records,
OSHA logs, how to analyze and track from them?

	MS. VOSSENAS:  Well, first, we teach them about the OSHA recordkeeping
standard, and we make sure they understand that the employer has the
responsibility to record injuries, and not only that, that an employer
has the responsibility to explain to workers how they can record
injuries.

	Most workers don't know that, and their experience indicates otherwise.
 So, that is the first thing we make sure they understand, and then
under that, we make sure they understand they have a right to obtain
those OSHA logs.

	So, when we obtain OSHA logs, for the most part, it's an actual worker
who requests from their employer their own OSHA log.  In this study, we
did this directly with the hotels and requested their OSHA logs, but
actually, we had to file a complaint with the National Labor Relations
Board to get those OSHA logs, and we did get them.

	So, we teach them about the Recordkeeping standard, we teach them about
what a workplace repetitive motion injury is, and what the signs and
symptoms are.

	If they are in California, we teach them about what standards are
there, that don't exist in other States, and then we train our union
reps and organizers about the same standards and how to access this
information, and then how to use it.

	MS. SHORTALL:  Thank you.

	MS. VOSSENAS:  You are welcome.

	MR. MADDUX:  Any other questions from the panel?

	Okay.  Thank you, Pamela.

	I am going to suggest that we take a 15-minute break at this time, and
we will resume at 20 after.

	[Break.]

	MR. MADDUX:  We would like to get started again, please.

	Is Andrew Langer present?

	[No response.]

	MR. MADDUX:  It looks like Andrew has not made it yet today, so we will
move on to the next speaker, Steve Newell from ORC.

	MR. NEWELL:  Thanks, Jim.

	Good morning, everybody.  The panel, I gave you guys a written copy of
the statement just in case you nod off while I am talking, you will have
something to refer to.

	We are really glad to be here today.  My comments are going to be
brief.  Frankly, when I heard Peg talk, I thought if she had circulated
her remarks, we probably could have signed off and just said ditto to a
lot of what Peg had to say.

	I will read the statement.  I guess you guys can ask questions.

	ORC appreciates what OSHA is attempting with this rulemaking, and we
also appreciate the Agency's openness in scheduling this public dialogue
here and discuss comments from the regulated community.

	Many of you might not know who ORC is.  By the way, I am Steve Newell. 
I am the Director for EH&S Networks for ORC Worldwide.  I have been with
ORC over a decade.  When I first took the job, I said I will do anything
other than OSHA Recordkeeping, and here I am. What can I say?

	ORC provides a broad range of services to more than 120 large global
corporations on workplace safety, health, and environmental matters.

	Our primary focus is on promoting best practices among our member
companies, and we also keep them abreast of legislative and regulatory
developments and strive to maintain a constructive dialogue with
governmental agencies and others in the workplace safety and health
community.

	Members trying to assure compliance contact us daily for assistance on
injury and illness recordkeeping. We probably average four to six calls
and e-mails on recordkeeping a day, every day.

	So, recordkeeping is an issue that is near if not dear to us.  The OSHA
data, for better or for worse, are really the primary data that are used
in this country, and really by many of our member companies on a global
basis to drive and gauge safety and health performance.

	So, when we talk about making a modification to the OSHA system, it is
important, because it can have an impact on performance.  It is
important that we get this rulemaking right.

	As a reminder, ORC consults with members before participating in
sessions like this, however, we don't put these up to a vote. 
Basically, we do what we think is right, period.

	So, the views we share today are really our own, they don't represent
the views of all of our individual member companies.

	Our brief comments are as follows.

	ORC generally supports the idea of an MSD column being added to the log
even though MSD cases already receive significant attention from ORC
member companies.  In many companies, it is through application of their
safety and health management system.

	The data show that we have an aging work population, so ailments of
this sort are likely to be on the rise.  Industry needs to better
understand the problem if we are going to deal with it effectively.

	Why is that important?  First, most of our companies want to do all
they can to protect and promote their most important asset, the health
and well-being of their workers.

	Second, from a pure business sense, ergonomic cases represent a
substantial cost for industry above and beyond worker's compensation
costs and lost work time.  An ergonomics case frequently serves as a
leading indicator of a business or work process that is inefficient and
needs to be improved.

	Now, ORC does have concerns about the implementation and timing of the
proposal.  The data derived from this column will only have value if the
criteria for recording these cases are reasonable and clear.  I think
Peg mentioned that in her comments, as well.

	Capturing the right mix of MSD cases is challenging.  In many
instances, the nature and extent of the work contribution will not be
clear, and the subjective nature of the symptoms for the more minor
cases makes it difficult to clearly distinguish between cases that are
personal and cases that have meaningful connection to work.

	Again, to be clear, despite the inherent softness of the data, we
believe that the column will help some employers have a better
understanding and appreciation for these types of conditions in the
workplace, but for the column to have a positive impact, OSHA really
needs to be thoughtful about how broad to cast the recordable MSD net.

	In this regard, there are two specific issues with the proposal that
concern us.  The first has to do with eliminating the current provision
that says that a temporary transfer for minor musculoskeletal discomfort
is not recordable under 1904.7(b)(4) as a restricted work activity case
if a health care professional determines at the time of the transfer
that the employee was fully able to perform all of their routine job
functions, and none of the OSHA severity criteria met.

	ORC submitted a letter to OSHA in 1998 supporting this concept, and we
still support it.  Why? Because it removes a barrier to employers
conducting work hardening and taking other precautionary measures before
any of the recordability criteria are really met.

	Now, we believe that the reasons are clear for maintaining the
provision, and that a few long-standing recordkeeping concepts may help
OSHA better understand our rationale.

	In the proposal, OSHA was drawing kind of a connection or pointing out
to the confusion between pain and discomfort, that term, and we think,
you know, if you go back and look at the way recordkeeping has addressed
some of these issues in the past, it kind of helps work through that
issue.

	Historically, the concept of -- there is a couple of examples here --
historically, the concept of medical treatment versus First Aid focused
on the level of treatment that was required by the case.  Hence,
employers could not avoid recording a case by simply refusing to apply
appropriate treatment.

	Similarly, the concept of days away from work and days of restricted
work activity or job transfer focused on the impact of the injury and
illness on the employee's ability to do their work.  That is why, under
the OSHA rules, restricted activity or motion in the abstract was never
deemed OSHA recordable.

	To have a case be OSHA recordable, you have to have a restricted work
activity before the case was entered in a log.  The provision for
allowing preventive transfers is very narrowly drawn to only include
situations involving minor musculoskeletal discomfort where the transfer
is not required by the case.

	In fact, for the provision to apply, the employer first must have the
case assessed by a health care professional, and that health care
professional must render an opinion to that effect.

	Now, when we do training on this, and we do a lot of training on
recordkeeping we counsel our clients to get that opinion in writing.  In
addition, the provision only applies to the most minor situations where
none of the other OSHA severity criteria have been met.

	OSHA's arguments for eliminating the provision are not persuasive. 
OSHA expresses concern over possible confusion that could result from
its application, but the Agency produces no study findings or other data
to support its beliefs about the degree or prevalence of the confusion
even though the provision has been in effect for more than a decade.

	To the contrary, we think the provision is very clear, perhaps one of
the clearest provisions associated with the entire Recordkeeping rule. 
Furthermore, OSHA's logic for eliminating the provision seems unclear.

	The Agency seems to be saying that the provision is not needed because
minor musculoskeletal discomfort would not be covered since it would not
be considered a case under the OSHA rules, but the rule contains a
section on subjective symptoms where the definition of a case includes
pain, tingling, or -- and this is the part that gives us heartburn -- or
any other subjective symptom of an MSD.

	We are curious as to how OSHA proposes to reconcile that language with
the issues around minor musculoskeletal discomfort.

	Finally, we have concerns about the implementation time frames for
implementing the proposal.  Since OSHA records are kept on a calendar
year basis, the Agency seems to be working -- maybe this has changed
with the extension -- towards a January 1st, 2011, effective date.

	That would not give many employers sufficient time to train their staff
and modify their systems to collect and process the data, and with a lot
of large companies, they have combined their health information systems
with their workplace injury and illness data systems, and so it is not
small feat to get changes made in some of those big systems.

	The Federal and State rulemaking process takes time to complete and
employers will not know the final requirements until later this year.

	In closing, I would like to offer one final thought, and this is really
from an old data guy.  You know, I have worked on data issues for years.
 I have been in this business over 35 years.  That is, capturing more
data does not always add value.

	For example, under the old Recordkeeping guidelines, an occupational
illness was defined as any abnormal condition or disorder other than an
occupational injury, and was recorded without applying the OSHA severity
screens of death, days away from work, restricted work activity, medical
treatment, et cetera.

	And what was the result?  Users really didn't know where to draw the
line for recordability.  The very broad definition of illness produced
inconsistent data for some conditions that had very limited utility, so
much so that OSHA abandoned the concept in 2001 when it revised the
rule.

	Again, we support the concept.  The idea is to get the definition
right, and I think that requires some thought.  My hope is that OSHA
doesn't make the same mistake with the criteria for the new MSD column.

	I thank you for accepting our preliminary comments, and ORC will submit
more detailed written comments during the extended comment period.

	That is it.  Any questions?

	MR. MADDUX:  I don't know how many members ORC has, or if you know this
right now, but can you tell us or give us some idea of how many or what
percentage of the employers already track MSDs?

	MR. NEWELL:  Gee, of our member companies?

	MR. MADDUX:  Yes.

	MR. NEWELL:  I would say almost all of them do, and most of them have
incorporated that.  It's not they can't break it out from the existing
law, but most of them have incorporated that in the risk part of their
safety and health management system.

	Most of them realize that ergonomics cases can be big cost drivers.

	MR. MADDUX:  No doubt.

	MR. NEWELL:  Yes.  In terms of the software requirements, in 2001, you
know, we had our final rule that was published, it would have had an MSD
column, and I know a lot of companies at that time had done the legwork
to incorporate data fields into their computer systems, and so forth.

	Is that legwork still able to be turned on in those computer systems? 
I know that people are concerned about the difficulties with adding this
into some of their computerized systems, but it seems to me that a lot
of companies have already done this work.

	MR. NEWELL:  Well, that's a good question.  See, I think what a lot of
companies have done is their computer systems have really evolved, and I
am not sure that they have kept that kind of -- I mean you would think
it wouldn't be that big a deal, but a lot of the companies we are
dealing with now are integrating their systems across the board, and
they are really done by service companies that do it for them, and I
don't think that has been kept, I really don't.

	You know, it's part of the feedback.  One of the things we did was I
polled the members, you know, as I was developing my comments, and there
is a real concern I think about what is the final rule going to look
like.  We don't really have a specification, so it makes it hard for us
to go out and talk to our vendors.

	I said, well, you know, I have been talking to OSHA, you know, they
basically say it is going to look very much like what they did in 2001,
but they really need specifics.  So, I do think implementation will be a
challenge for some, not for all.

	MR. MADDUX:  I would also like to ask you a little bit about this idea
of minor musculoskeletal discomfort with restricted work, not being a
recordable injury, and I think you actually hit the problem pretty much
right on the head, that the problem is that -- number one, I would like
to make it clear that this is not a provision of the existing rule, this
is an interpretive statement concerning the existing rule.

	But then also, the difficulty that we have here is what some of the
behavioral economists might call a cognitive sort of disturbance where,
you know, your pain is my minor discomfort.

	MR. NEWELL:  Right.  It's a sticky problem, but, you know, part of this
is I think you have got to think about it in terms of application.

	You know, one of the concerns I have is I work with member companies
all the time, and there is other people, like Pat, do too, and, you
know, you have got to come up with something that is sustainable and
workable.

	Think about the definition that you guys are talking about now, and I
am not opposed to including something in there about subjective
symptoms, but when you include a statement like any other subjective
symptom of an MSD, and you go, yeah, but those aren't going to be
recorded unless they are work related.

	Well, under the OSHA system, work relationship occurs if there is even
a slight contribution from exposure in the workplace.  So take an aging
work population, tell them that any subjective symptom could be
potentially OSHA recordable, and that any contribution from anything in
the workplace could contribute to that case, and I would like to know
how many cases are not going to make it on the OSHA log.

	Part of the deal behind -- you know, one of the things where I think
the Agency suffers is that when you come out with rules like this, to
the people on the shop floor that have to implement them, you don't look
reasonable.

	I think one of the things that the preventive transfer interpretation
got you was it came out, you know, that the Agency was really trying to
take a reasonable approach to a very tough problem, because, you know,
you don't want to have this be only recording cases where there is, you
know, objective findings necessarily.

	You know, you want to have it a little softer than that, but the
preventive transfer gave you credibility I think with people trying to
implement it, and the question is kind of where are the struggle points
around that.

	I think you guys have focused on the wrong part of that, which is kind
of the where do you divide pain from musculoskeletal discomfort.

	You can't, but I think what you can focus in on is what is the impact
of the injury or illness on the workers' ability to do their job, and
the preventive transfer interpretation of what you said was as long as
somebody is able to do all the parts of their normal job for a full
shift, in short, the injury hasn't impacted them enough to prevent their
ability to do that job, we will allow for work hardening or proactive
transfer, not have a recordable case.

	That made sense in 1998, and it makes sense today.

	MR. MADDUX:  Well, what the interpretation does say is that if there is
minor musculoskeletal discomfort, and those other things, then, the
employer doesn't need to report the case, so the notion of minor
musculoskeletal discomfort is really part and parcel of this
interpretation.

	MR. NEWELL:  It is, but it's not the operative term.  The thing that
makes it applicable is that you have a determination from a health care
provider that the person is fully able to do all parts of their normal
job and none of the other criteria being met.

	Those are the operative terms, and that is where I think you guys are
hung up on discomfort versus pain, and trying to make that distinction,
which you will never do.  No one can do that.

	MR. MADDUX:  Well, I am not going to argue with you about it here, but
I am just going to say that in your written comments, if you have any
ideas about how to provide some kind of greater clarity to the issue, it
would be very, very helpful.

	MR. NEWELL:  Okay.  Glad to do it.

	MS. SHORTALL:  I have a few questions.

	I would like to follow up on your comment about older workers.  How do
your member companies now, when an older worker reports pain or tingling
or numbness, go about determining whether that is from a work-related
cause or something personal?

	MR. NEWELL:  That is a great question, Sarah, and I think that what
they have got to do, what they should do when they have a report of pain
or whatever, they need to do an instant investigation.

	A lot of them will go back and they will look and see if they can
identify risk factors, and I think for a lot of these companies, you
know, the world is changing.

	I remember we had one company that was really struggling with
ergonomics issues, and one of the things they said, and they said this
to the other ORC members in an open meeting, is, you know, we are having
really to struggle with this, because we have designed our workplaces
for 35-year-olds, and basically, now, the average age is 53.

	So, I think this is a real struggle, and one of the things that our
guys do, and it is part of a health and safety management system is
basically you have to have very effective risk identification and
elimination, and so that is the way they do it.

	So, they do go after this thing, but it is tough sometimes to make that
call.  One of the things that our companies are doing, too, is they are
looking at the intersection between their health information databases
and their workplace safety and health databases, and seeing what health
conditions tend to lead to more Workers' Comp cases and more loss, and
they are trying to get ahead of some of these.

	MS. SHORTALL:  Do you think that your member companies would follow the
same type of analysis for determining if an older worker was
experiencing MSD if we come out with a final rule to record them in a
special column, would they continue using the same system of analysis?

	MR. NEWELL:  I think for our guys, it won't make that much difference,
because the ones who are driving their systems effectively, they are
dealing with this now, so I don't think that it will, and that is why,
you know, in our comments, I think for some companies this is going to
make a big difference, because I think of increased awareness, they will
see the data.

	You know, for every case that is entered on the OSHA log, you know you
have got a first report of injury or supplementary record.  There is
case detail you can analyze, you can look for patterns.  It helps, but I
think most of our members are already doing that.

	MS. SHORTALL:  Jim already asked you a few questions about electronic
systems for recordkeeping.  Are there just general times that those
systems, aside from changes in OSHA recordkeeping regulations, where you
have to update those electronic recordkeeping?

	MR. NEWELL:  Oh, sure.

	MS. SHORTALL:  Can you tell me anything about the range of costs that
might be involved in doing something like that?

	MR. NEWELL:  I really don't know.  It's a good question.  That is
something the Agency might want to look into, but I think the more
sophisticated the system, I think the more difficult it is to change.

	A lot of large companies seem to be moving more towards an integrated
case management and integrated data systems, so I think it is going to
require some work.

	MS. SHORTALL:  But you are saying that as a general course of normal
operation of business, they are updating these systems anyway?

	MR. NEWELL:  Yeah, they are, but the question is really the timing. 
It's not whether they would do it, it is how quickly can it be done. 
Frankly I am not sure, if you go through the Federal rulemaking process,
and then you give the state plan States a certain amount of time to
adopt, in a way you don't have a baked cake for months.

	So, you could say to these companies, well, you know basically what the
requirements are, go out and make the investment now, but that could be
a very significant investment, and if for some reason there is a change
at the last minute, you know, somebody's head could roll.

	So, I think that timing is an issue.

	MS. SHORTALL:  I also wanted to ask you another question, but in a
little bit different way about the electronic recordkeeping systems.

	I know that ORC represents Fortune 100 companies.

	MR. NEWELL:  Right.

	MS. SHORTALL:  But OSHA is considering if it puts out a final rule to
add an MSD column of developing some software that could be distributed
for free to employers who would like to move to electronic
recordkeeping.

	MR. NEWELL:  It's great.

	MS. SHORTALL:  Okay.  So, you would find that even other companies that
aren't the Fortune 100 would find that useful?

	MR. NEWELL:  We have said in meetings with David Michaels, if you
really want to fix recordkeeping, first of all, you have got to go after
the real drivers of underreporting, which I don't think the Agency has
stepped up to the plate yet to do that.

	Secondly, you really need to get some of the stupid stuff out of the
requirements, but then if you had an expert system that would help
people make the decisions, I think that would go a long way towards
improving the quality of the data, and I think our members would support
that.

	Frankly, some of our members would come up and they would even pay to
help develop something like that.

	MS. SHORTALL:  Do you also think that whatever an MSD column there
might be added to recordkeeping -- we won't know what the final details
would be -- but would you think that even Fortune 100 companies would
find it would make the tracking of MSDs a little bit easier?

	MR. NEWELL:  We support the column.

	MS. SHORTALL:  Okay.

	MR. NEWELL:  We support the column and I think a lot of the reasons for
the column that Peg enunciated I think were spot on.

	MS. SHORTALL:  In addition to the OSHA 300, to what extent do your
member companies use the summary data from the 300-A?

	MR. NEWELL:  Now, that is a good question.  I mean what companies tend
to do is they benchmark the OSHA data, and they use the OSHA data as the
trailing indicator to measure performance.

	So, they are using that internally, a lot of member companies are using
that data on a global basis, they use OSHA definitions globally.

	So, I am not so sure whether -- it doesn't really matter whether it's
the summary data or the data off the log, but they are using it site by
site.  They use it as a corporation to benchmark with other
corporations.

	Frankly, we don't think that is a good idea.  We think companies ought
to be looking at leading indicators, and not just a single trailing
indicator, so we work with our companies to benchmark where they are in
key elements of their safety and health management system, but companies
do use the OSHA data a lot.

	MS. SHORTALL:  Thank you so much.  Thank you for appearing here today,
and we look forward to receiving your more detailed comments, that you
have until March 30th --

	MR. NEWELL:  Thanks a lot.

	MR. MADDUX:  Next, Andrew Langer, I understand has joined us.

	Do you have copies?

	MR. LANGER:  No, I don't actually, I am still sort of working on that. 
I apologize for being late.  I have a rather lengthy commute, it took a
little bit longer, and parking was a bit of a bear this morning.

	MS. SHORTALL:  You are not the only person to have said that.  Dorothy
Dougherty, who isn't here right now, indicated she was just coming down
the wire trying to get here, so I know it was a bad day.

	MR. LANGER:  It happens.  It is certainly much better than it was when
D.C. was surrounded by the impenetrable force called snow.

	In any case, thank you for having me here today. My name is Andrew
Langer.  I am President of the Institute For Liberty.  We are a
non-profit advocacy organization based here in Washington, D.C.  We
focus on Federal public policy specifically Federal regulatory policy,
and we inject the small business perspective.

	So, I am going to take it from the other end of where Steve was going,
go down from the Fortune 100 to the very smallest businesses that OSHA's
regulatory orbit entails.

	By way of background, I have been at IFL for two years.  Prior to that,
I was a regulatory person at the National Federation of Independent
Business, which is the Nation's largest small business issue, and I take
a particular interest in occupational safety and health related issues. 
My dad's background is in that, so I grew up dealing with OSHA issues at
home.

	Anyway, I am here to sort of inject that small business perspective, as
I said, and we don't have member companies, we have individuals that
support us.  We approach things from a philosophical perspective, and we
are very interested in putting things in context.

	I think one of the great problems with public policy today is that
folks tend to get focused very parochially on particular issues.  One of
the things that we talk about is the general regulatory burden and the
general paper work burden at issue, because I think it is important as
we talk about the burden that this proposal might entail, and I will
talk more about it in a second because we really think that OSHA has
underestimated greatly the burden that this is going to impose.

	But to put it in general context, the cost of regulation today is
roughly a trillion dollars annually is the cost of Federal regulation to
businesses of all sizes.

	For small businesses, and that is businesses with fewer than 20
employees, my colleagues at the SBA's Office of Advocacy have estimated
that cost to be $7,700 per employee per year.  So, if you are a business
with 10 employees, which is the threshold limit for this rule, at
$77,000 per year, you are spending in Federal regulatory compliance.

	In terms of paperwork itself, it is funny because I went back and
looked at the numbers today, I have been using a three-year-old number
for a while.  In OMB's own information collection budget, so this is not
my number, this is not some far right wing thing tank number, but this
is OMB's own number, Federal recordkeeping, Federal paperwork
requirements are at 9.74 billion hours annually.

	That is a vast amount of time, that is, if you figure out man hours,
2,000 hours a year, I think that is roughly, what, 4.5 million hours
that we are talking about, or 4.5 million man years of time that
Americans are spending filling out paperwork for the Federal Government.

	That comes with a cost.  So, to sort of put it in general context
today, as we are talking about sort of the economic doldrums that the
Nation faces, these things have an impact on the economy.

	If we are talking about getting small businesses, the engine of our
economy, hiring again, putting additional mandates on those small
businesses right now, we don't think is the smartest thing to do.

	Let's talk for a moment about that issue of specific burden and this
regulatory proposal.  As was being discussed by my colleagues at ORC,
the fact is there is a whole host of things that are entailed in this
that aren't measured by the actual time spent filling out this form.

	I know that there are various interpretations of what paperwork burdens
entail, but the idea that someone can familiarize themselves with the
requirements of this rule in a matter of minutes is ludicrous when you
are talking about America's smallest businesses.

	With folks who hire ORC -- and I have nothing but respect for what the
folks at ORC do -- but for folks who are at ORC, or larger businesses,
you are paying ORC to figure out what your regulatory requirements are,
or you are hiring some sort of regulatory professional who spends
nothing but day-in, day-out figuring out what your regulatory
requirements are.

	Now, when I was at NFIB, we did survey data on the issue of -- I know
you are going to be hearing from Karen Harned, my former colleague here
later on, she may add to some of this -- but we know that generally,
when a business reaches the size of 35 employees, that they hire their
first regulatory professional.  Generally, that person is an HR
professional.

	Sometimes that HR professional deals with occupational safety and
health issues, but by and large, they are dealing with regular sort of
wage and hour issues, the EOC issues, those other compliance issues that
sort of capture businesses in a much greater regulatory orbit.

	The fact is that invariably, when you are talking about a business
between 10 and 20 employees, as literally we are talking about here, you
are generally finding that it's the owner of the business, his or her
spouse, or some other designated employee who is not a regulatory
professional, who is ferreting out what those regulatory requirements
are.

	Given the size of the Federal Register and the frequency with which
regulatory requirements are changing, we know that it takes a
considerable amount of time for folks to figure it out.

	You know, if you haven't heard of an OSHA log or you don't know what an
MSD is, and you may get something in the mail, it is going take you a
heck of a lot longer than five minutes to figure this thing out.

	Then, there is the issue of investigation of incidents which, while not
bound up in the actual filling out of paper, I agree that some
investigation ought to occur, so you can determine whether or not that
MSD injury is related to the business itself, but that is a
time-consuming process, as well.

	One of the things we like to express things in is getting to this time
issue, again putting it back into context.  If you assume that a work
year is 2,000 hours long, every 8 hours of burden that you place on a
business is half a percentage of productivity time.

	I mean I don't like framing things in cost issues, bare bones cost
issues, because I think that ignores the productivity side of it, so
whereas, I might be paying an employee $50 an hour or $20 an hour, or
what have you, let's say $30 an hour for a very skilled labor person,
you are talking about that productivity which may be billed out at
several hundred dollars an hour, hundred dollars an hour, so measuring
it in terms of wage time lost is an incorrect way of measuring it.

	It has to actually ought to be measured in productivity.  So, anyway,
putting it back in that context, when you are talking about
investigative time that is involved, while it may be important, there is
certainly a much greater burden involved in what is envisioned by this
rule.

	You know, getting down to this issue of whether or not the definitions
actually encompass what OSHA is trying to get at, one of the things that
we believe, in talking to small businesses, is that a lot of businesses
will err on the side of caution, and that they will include MSD injuries
that may or may not be related to the actual occupation itself.

	In that regard, I think two things may be envisioned by this.  Number
one is skewed reporting, skewed data, as what Steve was talking about,
this issue of we need good data to figure out if there is a problem.
Right?  If we are getting bad data, we are going to get bad conclusions
at the far end, and that policy determination is the far end.  I think
that is incredibly problematic.

	The other side of it is that we are deeply concerned that this is
rulemaking is the door opening to greater rulemaking by OSHA on the
issue or ergonomics, something which we know from research back in the
early parts of 2000, late '90s, et cetera, amounts to a huge regulatory
burden on small businesses.

	Again, going back to the data provided or the studies provided by the
Small Business Administration's Office of Advocacy, we are talking about
tens of billions of dollars annually.

	So, with that, I am going to conclude.  We are in opposition to this. 
We think that this is not data that needs to be reported.  We think that
it will just create more problems and will just be a huge cost burden.

	With that, I will open it up to questions.  Did I get my five minutes?

	MR. MADDUX:  Oh, easily.  Any questions? 

	I guess, first of all, I would just like to make a couple of
clarification, and that is, that the burdens that we estimate here are
average burdens, and that they are intended to be measures that go above
and beyond what people are already doing.

	So, for example, we already know that people are investigating cases
for workers compensation purposes, at least for some overlap of cases,
and that sort of thing.

	I would also point out that the rule does exempt many, many small
employers, which I am sure that you are aware of, which has a huge
limit, and that because of the nature of small business, a business of
20 people, which seems to be the number that you like to use, recorded
injuries at twice the national rate, that would be maybe two injuries a
year.

	MR. LANGER:  On average.  I would think that maybe we ought to look at
breaking down and looking at how those cost burdens impact those at the
lower end of the spectrum.  I think that is important in terms of sort
of looking at the general picture.

	As we know, regulatory costs -- to get back to that $7,700 number --
the reason why I used that 20 employees or fewer is that because of the
hiring of regulatory professionals, those costs go down, and because --
well, and because the cost averaging goes down.

	So, it actually drops, above 20 employees, that cost drops down by
about a third.

	MR. MADDUX:  Okay.  So, you are saying we should use some sort of
different costing mechanisms in the 10 to 20 ranges.

	MR. LANGER:  Yes, well, 10 to 20.

	MR. MADDUX:  That is all I have.

	MS. SHORTALL:  Do you happen to know what percentage of establishments
or players have fewer than 10 employees?

	MR. LANGER:  Yes, it's -- well, fewer than 10, no, I don't have access
to that.

	MS. SHORTALL:  Ten or fewer.

	MR. LANGER:  I know that fewer than 20, it's 90 percent of employers.

	MS. SHORTALL:  Okay.  So, 90 percent of employers would be either
wholly exempt from the recordkeeping or partially exempt.

	MR. LANGER:  I don't know about wholly or partially.  I don't know what
the breakdown is between 1 and 10.

	MS. SHORTALL:  Is there any certain sector of industry in which small
employers predominate, is it service, transportation?  Would you be able
to hazard a guess?

	MR. LANGER:  No, I am just sort of going down. It has been a while
since I looked through those stats.  I know that when I was at NIFB, we
generally reflected the business population, small business population,
that it was about 50 percent retail, 25 percent restaurant, and then the
other 25 percent in other areas.

	MS. SHORTALL:  Okay.  Going back to the question about what you said,
you believed 90 percent had 20 or fewer employees, but the figure I have
heard about 10 or fewer would be 85 percent of establishments.

	Do you think that might be fairly accurate?

	MR. LANGER:  Possibly, I don't know.

	MS. SHORTALL:  Mr. Newell, when he testified, were you able to get here
for his --

	MR. LANGER:  I was here for about half of it.

	MS. SHORTALL:  Well, one of the things he indicated in his was that in
ergonomics cases, frequently, services is a leading indicator of a
business or work process that is inefficient or needs to be improved.

	How do small employers use reports of MSDs, do they also look at them
as leading indicators to see how they could make their business more
efficient?

	MR. LANGER:  I doubt that they quite look at it in such a sophisticated
fashion.  I know that small business owners are constantly looking for
ways to improve their businesses, and you have got to also keep in mind
that, you know, most of these small businesses, they have a very
personal relationship with their employees.

	I mean if you have between 10 and 20 employees, generally, the owner
knows who they are, has personal relationships with all of them, is
trying to do what he can to keep them all, not just safe, but also
working.  I mean they go hand in hand.

	You lose somebody in a business that has, let's say, 100 employees, you
lose somebody for a day, that's 1 percent of that day's productivity. 
If you are a small business owner, you have 10 employees, you lose one
person.  That's 10 percent of your productivity for that day.  So, they
are always looking at ways to make sure that their employees are safe
and healthy, and working at their optimal level.

	MS. SHORTALL:  So, your group that represents small businesses, what is
your definition of small business, how far up do you go on --

	MR. LANGER:  When I talk about small business, I look at 20 employees
or less.  That, to me, because the regulatory costs are so vastly
different for them, that is what I look at.  That is what I looked at
when I was at NIFB.  NIFB's average member size was 10 employees, so I
looked at that as a good sort of proxy number.

	MS. SHORTALL:  I know you are here today to testify against, in
general, the rule, but do you have any specific comments on individual
aspects of what the proposed rule, for example, the definition of MSD?

	MR. LANGER:  Well, no, well, only because let me sort of taking it
back, it is one of those areas where, as Steve pointed out, the issue of
pain versus discomfort is huge, and the subjectivity that is involved.

	I think you are going to have a lot of small businesses that aren't
going to understand just what -- is not going to know, is going to take
a while to figure it out, and again, some of them are going to err on
the side of caution.

	I think you will find some of them are going to err the other way and
just forget about it, just not going to bother, which is going to
increase their liability, and I see that as a problem, as well.

	MS. SHORTALL:  So, looking at -- I know you are not a member company --
but let's say contact with small employers who have between 10 and 20
employees, since those below don't have to keep the records anyway,
OSHA's definition of injury or illness under the current rule includes
abnormal condition and the preamble to find that to include pain and
other wholly subjective symptoms.

	How do those companies today go about determining whether something
that involves subjective symptoms, such as pain, is a work-related
injury or illness or not?

	MR. LANGER:  Well, I think most of them, because you are talking about
a smaller business, a lot of them can see whether or not what that
worker is doing is hurting them.

	In terms of specific instances, there is probably some sort of an
investigation, but a very, very informal one at that, you know, the
employer going out in back of his warehouse saying what the hell is
going on, what did you do -- pardon my French, I am sorry about that --
what are you guys doing, how did this happen, and that sort of thing.

	There is this issue in terms of a lack of sophistication where they are
not going to know, they don't know with specificity how to figure out if
it was an injury gotten on the job.  You know, if you have a worker who
comes in and complains, they do their very casual -- not casual, that's
not the right word -- but uneducated investigation.  They still may not
come to a determination as to exactly whether or not it was a
workplace-related injury or not.

	MS. SHORTALL:  Have you had any of the small businesses come to you,
the few that do have to keep records, and say anything like we cannot
figure out what an injury and illness is under OSHA's Recordkeeping
rule, or have they been able to --

	MR. LANGER:  We haven't actually stepped out there.  You know, we do
engage in a fair amount of sort of grass-roots, you know, activism.  We
haven't stepped out there with this yet, and we actually plan to.

	That is why we are happy you guys have extended the comment period
until the end of the month, so we can go out and do a little bit more in
the field to figure out what folks out there are going to say.

	MS. SHORTALL:  Okay.  Just a couple more questions.  One of the things
we mentioned in the proposed rule was OSHA's considering putting
together some software, so smaller employers -- it already sounds like
the big employers are way beyond what we would be able to do -- would
have some type of electronic recordkeeping system that would help them
navigate through this as easily as possible.

	To what extent would that be helpful to the few small employers that do
have to keep records?

	MR. LANGER:  We have been on the record.  I actually by way of
background spent some time working with the folks at SBA, who were
working on what they call their business compliance one stop, which was
a way for businesses to sort of go in and do all this without having to
go to DOL's web site, EPA's web site, et cetera, et cetera, et cetera. 
You know, folks are reporting to a variety of different agencies.

	Electronic reporting is good.  Obviously, it can be made mandatory. 
One of the big issues you have to keep in mind is that there is about 15
percent of businesses that don't do business on computers, which is
really strange.  I know we all find that stunning in this day and age.

	As long as it's easy to navigate, easy to understand, it is easy to
find.  Then, yeah, I think it's a great idea.  I mean it will reduce the
time that folks are spending actually filling out stuff as long as they
can e-mail it in.  We would support something like that.

	MS. SHORTALL:  Okay.  Do you know to what extent employers of between
10 and 20 employees currently have electronic recordkeeping systems?

	MR. LANGER:  I would say probably, as I said, 85 percent of businesses
that are using computers in any aspect of their business -- and that
again comes out of a study out of the NIFB Research Foundation -- let's
say half of them are probably doing some sort of electronic reporting,
so just under 50 percent, 45 percent.

	MS. SHORTALL:  That's my last question, but I do have a request.

	MR. LANGER:  Okay.

	MS. SHORTALL:  I really am glad you are going to be going out and
talking to people out in the field.  I would ask that you please give
this one message from OSHA, and that is, the comment period is open
until the 30th of March for anyone.  So, as you are talking, if people
individually have comments they would also like to send in, we really
would request and welcome that they come in.

	MR. LANGER:  That is what we do.  We actually really focus on -- just
so you know -- to me, it is very important.  As we move to this issue of
-- I was involved with the whole regulations.gov, electronic rulemaking
-- I believe firmly that the more individuals you have getting involved
in the rulemaking process, the better rules that we have.  You know,
there is a certain degree of sanity.

	 It is something that Tom Sullivan, who used to be Chief Counsel of
Advocacy at SBA -- I consider him a mentor, he is now on-board with us
as a Fellow -- Tom tells a story about rulemaking at EPA in which EPA
was going to be mandating a particular device be put on off-road diesel
engines.

	It wasn't until someone actually came in to EPA, a farmer came in and
said I physically cannot fit this device under the hood of my tractor,
that EPA finally realized this wasn't the place to go.  It just goes to
show you need individual support.

	MS. SHORTALL:  Okay.  Then, you can tell the 85 percent who do have
computers that they can file their comments right through REGSET, and
they don't even have to spend the stamp to get it to us.

	MR. LANGER:  I will do that.  Thank you all very much.

	MR. MADDUX:  We are running a fair bit ahead of schedule, so I will
start looking to see if we have some of the speakers that were scheduled
to be up in the afternoon.  Patricia Seeley with AIHA.

	MS. SEELEY:  These are printed copies.

	MS. SHORTALL:  Thank you so much.

	MS. SEELEY:  On behalf of the American Industrial Hygiene Association,
AIHA, thank you for the opportunity to provide these remarks regarding
OSHA's proposed rule to revise the Occupational Injury and Illness
Recording and Reporting Regulation as it applies to the recording of
musculoskeletal disorders, MSDs, on the OSHA 300 Log.

	AIHA is the premier association serving the needs of professionals
involved in occupational and environmental health and safety practicing
industrial hygiene in industry, government, labor, academic
institutions, and independent organizations.

	The AIHA mission is to promote healthy and safe environments by
advancing the science principles, practice, and value of industrial and
occupational hygiene.

	AIHA is not only committed to protecting and improving worker health,
but the health and well-being of adults and children in our communities.
 One of AIHA's goals is to bring good science and the benefits of our
workplace experience to the public policy process directed at worker
health and safety.

	I am Patricia Seeley and I am the current Chair of the AIHA Ergonomics
Committee.  I also hold the designation of certified professional
ergonomist and have been in the profession for 12 years.

	The AIHA Ergonomic Committee is comprised of 75 members from industry,
academia, consulting, labor, and government.  The majority of our
committee members hold the designation of CPE, Certified Professional
Ergonomist, who have worked for decades within, with, or for companies
that already tabulate their MSDs.

	In fact, we all agree that separating out the MSDs from acute traumatic
injuries is the first and essential step in the reduction of MSD
injuries.  The AIHA position statement on ergonomics lists the goals of
MSD reduction:  decrease risk of musculoskeletal injuries and illnesses,
decrease worker discomfort, and improve the quality of work life,
improve workers performance.

	AIHA supports the proposed recordkeeping rule as an effective,
long-term strategy to improve occupational health.  This rule will be
most helpful for those industries and organizations that have not
already addressed MSDs in their workplaces and require accurate data to
initiate their efforts.

	It will further assist companies already monitoring MSDs to benchmark
against other organizations. One difficulty in relying totally upon
insurance company reports for tracking of these disorders is the lack of
consistency of the data.

	There are differences from State to State in how  Workers' Compensation
Bureaus define and compensate for MSDs.  There are also vast differences
in how insurance companies compile, analyze, and provide this data to
the companies they insure.

	Having a well-defined, common method of recording injury and illness
data, such as is being proposed by OSHA for MSDs will provide
consistency of data and allow for better benchmarking.

	Inclusion of the MSD column on the OSHA 300 Illness and Injury Log
facilitates the collection of data on musculoskeletal disorders.  There
is almost universal agreement that what is not measured is not managed.

	The Bureau of Labor Statistics data indicates MSDs operating under
their definition are responsible for 29 percent of their lost work day
cases.  When repeated trauma was last reported in the OSHA 300 Log, so
also including occupational hearing loss, they accounted for 67 percent
of all occupational illnesses.

	To not analyze such a significant portion of the occupational injury
and illness incidences is not in the interest of U.S. commerce and
industry.

	The OSHA 300 Log already includes columns for respiratory disease and
skin disease.  These categories are also very broad and are associated
with a variety of exposures.  For example, respiratory disease may
include cancer, chronic obstructive pulmonary disease, and
pneumoconiosis among others regardless of the cause.

	The etiology of these diseases is not exclusive to the occupational
environment.  Similar arguments apply to skin diseases.  The inclusion,
therefore, of an MSD column on the OSHA 300 Log conforms with the
approach exemplified by the current law, since MSDs are also not usually
attributed to a one-time, single-factor exposure.

	OSHA promises to provide training and guidance in the definition of
what an MSD is, as well as what it is not.  It is the position of the
AIHA that OSHA's recommendation for a "do not include" language and
specific lists common MSDs as proposed in Section 1904.12, in important
in making this new recordkeeping requirement useful, accurate, and
relatively painless.

	Back injuries, including herniated spinal discs, should be included as
proposed, as well as tarsal tunnel syndrome, and Raynaud's phenomena. 
AIHA also supports the inclusion of subjective symptoms including pain,
burning, or numbness as defined in Section 1912, Subsection (b)(3), as
long as the symptoms meet all four requirements of the proposed rule.

	AIHA recommends inclusion of a list of risk factors for MSDs in order
to assist OSHA recordkeepers who are familiar with the work and tasks of
their own employees within companies.

	Referring to risk factors has been found helpful by companies who
already do their own MSD reporting. These risk factors would include
such items as awkward, twisted postures, extended forward bending of the
trunk, trunk rotation, whole body and/or upper extremity vibration,
forceful upper body exertion, work above hard level, repetitive work,
extended static work without possibility of repositioning, long
durations, extended reaches, heavy, awkward listing, forceful wrist
deviation or pinched wrists, neck extension, forceful exertions with
exposure to pressure points, extended work without adequate footing.

	These general risk factors have been identified from the peer-reviewed
research literature over the past several decades as problematic for the
soft muscle tissues subject to MSD development over a period of time.

	There is also substantial evidence of under-reporting of MSDs as noted
by the U.S. House of Representative's Committee on Education and Labor
hearings in 2008, and the Government Accountability Office, GAO, in
2009.

	Injury under-reporting is particularly egregious in the case of MSDs as
contrasted with acute traumatic injuries, because the cause of an MSD is
not a single identifiable and observable incident, such as occurs with
such acute injuries as burns, fractures, or cuts.

	Since MSDs occur over time, the question, what were you doing when the
injury occurred is irrelevant. Workers are often not educated to report
long-term discomfort or pain, which may have been treated over months
and years by a medical professional and never reported as work related.

	They may need to report an injury on the day it occurs, a requirement
not applicable to MSDs.  Workers often assume that MSDs are simply age
related or arthritic.  The fact is, however, that whether an MSD is
reported in the OSHA log or is hidden by non-reporting, the company
still pays for it either through Workers' Compensation or through its
own health insurance premiums and medical plan.

	It will be of substantial benefit to draw further attention to the
actual injury or illness picture by capturing MSD data.  It is important
to remember that MSDs are, in general, preventable.  The science exists
to design interventions that will minimize the development of MSDs in
the workplace, and many companies have already benefited from internal
processes for addressing MSDs.

	These companies each began with the acknowledgment that MSDs are
extremely expensive in human productivity and monetary terms by looking
at internal data.  By requiring these companies to report usable and
consistent data, OSHA can assist industry in identifying priorities for
resource allocation to prevent further MSDs.

	This recordkeeping change will also assist OSHA by showing the benefits
of its efforts with prior and post implementation injury/illness data. 
AIHA pledges our full assistance to OSHA to see that this proposed rule
accomplishes its intended objectives.

	AIHA's concern continues to be the prevention of MSD risks to workers
and others.  I ask that my written comments be submitted for the record
and have attached to these comments a copy of the AIHA adopted position
statement on the issue of restoring the MSD column to the OSHA 300 Log.

	On behalf of AIHA, thank you for the opportunity to participate and
present our views.  I would be happy to answer any questions you may
have.

	MR. MADDUX:  Thank you, Patricia.

	I guess one of the questions that I have is what utility the data from
an MSD column would have for ergonomists, such as yourself, that are
providing these services to employers around the country.

	Would you use that data?

	MS. SEELEY:  AIHA has not taken a specific statement on that except to
report the rule, but I can tell you as a consultant, and working within
companies as an ergonomist, that it is extremely painstaking, very
time-consuming to not have this data.

	Each company is coming up with their own definition of MSDs, and as an
ergonomist, I am always asked whether I am working for a research
organization and institute within a company, as a consultant, I am
always asked, well, you tell us, give us your list, and then we will go
back to the data and we will find it for you, and it still requires so
much sifting and sorting to go back painstakingly into each particular
case.

	What I have found I had to do was often to go back to the worker and
the supervisor and interview them, because there wasn't sufficient data
to tell us that, and in order to get a picture of a work group and their
exposure to ergonomic factors, besides doing the ergonomic analysis,
besides shadowing them, besides doing the site visits, you need that
data to begin with, and that would be extremely helpful.

	MR. MADDUX:  So, this would really make your investigations, your work
a little bit quicker, a little bit more efficient?

	MS. SEELEY:  Yes.  I guess I would add that in my work with small
businesses, because you don't have much data, and you don't have much
injury, ergonomics is really about prevention, and so you go out and you
do that analysis on site.  You talk to the workers themselves, but if
you have, even in a small company, let's say that you have two or three
MSDs that have happened, boy, this is getting everybody's attention,
let's find out what is going on.

	But having that data categorized as an MSD, and then being able to
benchmark that with other companies within your industry, and other
industries, would be extremely helpful.

	MR. MADDUX:  Thank you.  The proposed definition of MSD that we have
put forward, is that consistent with the analysis that you do?  I mean
would that match up pretty well?

	MS. SEELEY:  AIHA's statement really supported what OSHA'S definition
is, and we think that there is probably some more work to be done on
that, but in my work as a consultant, and within companies and for
research institutes, it is very consistent.

	You know, looking at rotator cuff syndrome for people who work
overhead, that's an obvious link.  Looking at carpal tunnel syndrome,
people who have extreme wrist exposures are working in the office
ergonomics arena, and we find a high correlation there.

	So, a specific definition and let's go from there will provide I think
a lot of value.

	MR. MADDUX:  It sounds like you have worked with quite a few smaller
employers.  Do you think that the people that you have worked with in
the field, that they would be able to look at this definition and make
the correct decision about whether or not to check an MSD column?

	MS. SEELEY:  I think that is one of the reasons why we included a list
of risk factors, because what I found was in order to get some value out
of, okay, this work group of maybe in a large company you have 400
workers doing this kind of overhead line mechanic work, for example, or
you are in a small company, you have 10 manual materials handlers.

	If you know they are doing that kind of work, and you look at those
specific risk factors that person is recording, knows, oh, well, this is
their job classification and here are some representative risk factors
that apply to that job classification.  That would certainly make it
easier to categorize it.

	MR. MADDUX:  Thank you, Sarah.

	MS. SHORTALL:  You had mentioned some of the risk factors that OSHA
might consider using.  Are you suggesting that OSHA put that in as
examples, or put it in as part of a requirement, meaning that these type
of factors would have to be present for it to be considered an MSD or
work related?

	MS. SEELEY:  AIHA supports the inclusion of the risk factors.  From my
own experience within companies as a consultant, that is helpful as a
guide.  I personally wouldn't see it as a requirement, but if OSHA gives
it as a guide in some of their training, I think that will assist people
and make that classification a much more simple decision.

	MS. SHORTALL:  When you said that you have done work for small
businesses, what would you say are the size range of those small
businesses you have worked with?

	MS. SEELEY:  I am working for one right now that only has 7 employees. 
Wisconsin is a very big area for small businesses, a lot of our big
manufacturing companies have left, and so we have an awful lot of
companies that are under 100.

	So, I work anywhere from 5 -- they might have as many as 50, but
typically, in that 10 to 20 to 30 range, and go on site and do -- it
tends to be manual materials handling.  It doesn't tend to be highly
repetitive assembly work and, as in the utility industry, it's a wide
variety, and that is where it gets to be difficult if you don't have a
list of risk factors.

	When they are not doing assembly line work, the same thing every day,
all day, and often times you can't see the work.  In the utility
industry, it is when the power goes out, and they are in snow and rain
and ice and sleet, and I don't want to be out doing an ergonomics
assessment, thank you very much.

	I am not always welcome, because things are a little dangerous at that
time, and we are too busy, just come back at another time, and we will
model it for you.

	I think with that wide array of exposures, especially with manual
material handling work, and not light assembly on the assembly line, I
think it is very helpful to companies, because the companies that I have
worked with, that are already doing this include a list of risk factors.

	They have come up with their own definition, we are going to include
this, this, and this, but here are the risk factors, and here is our
person who does our recordkeeping.  Keep that in mind.  If you have got
a question, call the supervisor here, but knowing the job
classifications, that is very helpful for them.

	MS. SHORTALL:  In working with the small businesses that have over 10
employees, what percentage of them have electronic recordkeeping systems
now?

	MS. SEELEY:  In my experience, less than half.

	MS. SHORTALL:  Less than half.  All right.

	OSHA is considering publishing some software that it would make free to
employers for doing recordkeeping, and to what degree would you think
this would be welcomed by small business?

	MS. SEELEY:  In Wisconsin, probably not very. They are pretty
provincial.  These are very small companies, the ones that are getting
to, a lot of them, you know, papa still is busy in his 70s, 60s and 70s,
still running the business, and not quite ready to hand it over to his
son Joe, who maybe is more technologically literate.

	They are just not quite there.  It is coming slowly, and I think that
is a very individual case of whether it's welcome or not.

	MS. SHORTALL:  In looking at our definition of MSD in some of the
examples that we included in there, are there any MSDs that we should be
adding to that list or removing from that list?

	MS. SEELEY:  AIHA didn't take a statement on that, and frankly, the
ones that are in the list and the ones as you have mentioned today, I
think are pretty comprehensive.  The big one has always been lower back
injuries.  If we have a handle on that, we have addressed an awful lot
of the MSD exposure.

	MS. SHORTALL:  Do small businesses -- I am going to stay with greater
than 10, since the ones less than 10 don't have to keep the records --
the ones that have more than 10 employees, are they currently doing
tracking analysis of work-related MSDs, or are they relying totally on
outsiders like yourself to come in and do that analysis for them?

	MS. SEELEY:  In my experience, they typically have someone who is their
HR person, who has been assigned to the safety function, doesn't know a
whole lot about safety.  They know they have got lower back problems or
they have, gee, Joe over here just developed carpal tunnel, and we are
worried about it, and then they typically -- they know they have an
issue, but they can't really get their hands around it, and so they hire
an outside consultant, say, you come in and tell us.

	MS. SHORTALL:  Earlier this morning, we had one person testify that
employers are using different forms of work restriction and job transfer
as a way to avoid having a recordable MSD.

	Do you find that occurring in the businesses you are working with?

	MS. SEELEY:  In my experience, I haven't found that to be true.

	MS. SHORTALL:  Currently, OSHA's definition of injury and illness
includes subjective symptoms, such as pain and other wholly subjective
symptoms.

	How do small employers today go about figuring out whether a report by
an employee of pain or another subjective symptom constitutes a
work-related injury or illness?

	MS. SEELEY:  That is a very good question.  That is a tough question. 
Because my business is such a wide range from very small to the biggest,
it is really hard to get my hands around that.

	I can say, as an ergonomist, that pain and discomfort is an important
indicator.  When I go out and job shadow someone and do an ergonomics
investigation, it is one of the questions I will ask, is what are the
tools, equipment, materials, work practices that, by the end of the day
or by the end of the week, or over a period of time have caused you the
most discomfort, and that generally gets them talking about those tools,
equipment, materials, and work practices, and prioritizing in their
mind.

	I have found that to be a very helpful experience.  How employers are
dealing with that, the smaller it gets and the smaller the work group
gets, the most that that supervisor is the front-line person to being in
touch with their worker and knowing what is going on with them and the
work group as a whole.

	The bigger it gets, the more you have.  You might have 15, 20, 100, up
to several thousand people that are doing the same work, and have a
better picture on that, but the smaller it is, it really comes down to
that front-line supervisor, are they treating this as this is an ongoing
chronic condition, are they considering it to be non-work related, do
they think it is just because they are getting old, they have arthritis.

	The bottom line comes down to is the company perceiving, especially a
productivity loss, but also the human terms, but are they, over time,
finding that there is something less in their production and their
ability to do the job well that is affected by work exposures.

	That is where they are generally hiring me as a consultant or I am
working with a large industry group and saying we need to get a handle
on this work group, and that they are asking the questions.

	Lacking that consistent data across the board is the real handicap.

	MS. SHORTALL:  I have two more questions.  One is generally, when
employees report pain, are either the HR person or the front-line
supervisor of the company referring them to health care providers for
assessments?

	MS. SEELEY:  Yes.

	MS. SHORTALL:  My last question, if everyone will indulge me, I am from
Wisconsin, so I have a curious question to ask you.

	To what extent have you been doing industrial hygiene work for any
small cheese companies in Wisconsin, of which there are many, and that
seems to be a growing industry there?

	MS. SEELEY:  I don't personally, because my practice is solely limited
to ergonomics, but I do know several industrial hygienists at
cheese-making companies, there are such folks, and they do very good and
very thorough work.

	MS. SHORTALL:  Thank you very much for indulging me, everybody.  Thank
you again for coming here today to testify.  We appreciate it so much.

	MR. MADDUX:  At this time, we will have Jackie Nowell with UFCW.

	MS. NOWELL:  Thank you and good morning.  My name is Jackie Nowell and
I am the Director of Occupational Safety and Health Office at the Food
and Commercial Workers Union here in D.C.

	Thank you for the opportunity to be here today and give comments to
this important recordkeeping rulemaking.  I am going to spend my time on
the MSD column, however, we will be submitting written comment to the
docket that will include all of the issues that OSHA is addressing with
this rulemaking.

	There is a need for data.  Data leads to changes in the workplace.  As
one industry person said to me, the current situation leads to MSD as
being hidden.  It is no accident that we have no data, and OSHA finds
itself here today with a recordkeeping rulemaking.

	The last Administration achieved their purpose, they didn't want to
know.  They made ergonomics all voluntary, they put out guidance which,
you know, to several industries, and they threatened some 5A1 inspection
action.

	The industry cooperated with reports on how MSDs had gone away and
essentially, that was supposed to be the end of the story.  So, today, I
am going to address the results of OSHA's decision back in '03, just did
that, what two trade groups have done with the current MSD statistics.

	I am going to just briefly mention the definition, but again I am happy
to take questions.  I just think that I would rather spend my time on
the column.

	We have a database, and I will go into that, and I have slides of those
results, and I do want to talk about this issue of restricted duty
versus lost time cases, because we have a lot of credibility from our
data.

	This is what the industry did with the current statistics.  Headline in
2004 from the American Meat Institute, DOL data show that meat industry
injuries have been cut in half since '96.  Now, this was despite BLS
warning against comparing 2002 statistics to any other year.

	So, they decided just to go back and do the whole time frame.  Again,
much of the decrease was due to no MSDs.  They were really going down. 
Then, the National Chicken Council just a month ago put out a headline
that since 1992, MSD rates have fallen over 75 percent.

	Now, again, BLS warned not to go back, and as Peg showed you with her
analysis, if we are only looking at lost time MSDs, of course, they are
saying they are gone.

	Again, I am just going to echo what Peg said about the definition.  We
think it's fine.  What OSHA is proposing, we know it is what has been
used in the red meat guidelines and by OSHA for years and years, and I
can give you Tyson's definition if you would like, if you want to have a
conversation about that.

	But let me get on to the MSD column and tell you about our database. 
We analyzed OSHA logs from retail grocery stores, health care
facilities, poultry, food processing, and meatpacking plants represented
by UFCW. The database we developed covers OSHA logs from 2004, mostly
through 2008.

	The report that we wrote covers an analysis of the logs from
meatpacking and poultry only, only because of staff time and effort. 
The data for meatpacking and poultry we have 298,000 meatpacking and
poultry workers contained in the database, 79,000 worked in poultry,
210,000 in meatpacking.

	For each of the five years, there are between 35- and 55,000 workers in
the database, and it represents about a quarter of our members in these
two industries. Again, there will be much more detail when I submit the
written comment.

	In terms of our definition of an MSD, I like the way Pam Vossenas put
it, it was really a guessing game, because each entry on the log had to
be assessed, and we used an intern for two straight summers, so in 2008
and 2009, she worked all summer long only on this database, along with a
lot of other staff time.

	I will say more about the quality of the data, but what we did was use
what the companies were using as an MSD, so if they literally wrote in
the box this was an MSD, we used that one.

	We used pain of an upper extremity.  We have been doing this for a
long, long time.  Meatpacking was one of the first industries to be
cited by OSHA back in the '80s for ergonomics, so we know about pain of
upper extremities given the work that we know that happens in
meatpacking and poultry, so we used pain of an upper extremity.

	Then, we used strains and sprains, we coded them if they were
associated with repetition in an upper extremity, and not a one-time
event.  Sometimes that was squishy to try to figure that out.

	What we found.  There were a range of recording problems.  We would
find a log entry that was so complete as to be a medical diagnosis.  We
found some that merely said pain, no body parts, no cause, no anything,
handwritten, and this will be a meatpacking plant with 1,200 to 1,500
workers, handwritten log.

	Then, like I said, with others, we found just complete information not
only on the cause, but the diagnosis.  So, there was a range of what we
found.

	When we would have the local unions request the OSHA 300 logs, the
companies would oblige and give them sometimes, sometimes we had to go
back, but they wouldn't include summary.  So, without the summary, we
didn't have a denominator, we couldn't figure the rate, so it was a
constant process of having to call the locals, give us a guess on how
many employees in there, so we could make a guess on a rate.

	We did find that MSDs were the leading cause of injuries.  I am going
to talk about restricted duty versus light duty cases, but I really want
to stress the time and effort that it took to do this.

	I don't do computer work, I do health and safety work. I am in the
field.  I do investigations.  I assist local unions.  I don't create
Excel data spreadsheets, so I had to get my research office to help me
do that.

	Like I said, I had an intern for the summer who did nothing for that
first summer but read logs.  We created a little chart that she would
use to record each one in a box.

	This database also contains all injuries and illnesses, and so we were
really looking for what are the leading causes of injury in our
workplaces, so we can go back and help the locals with preventive
strategies.

	So, there was that process, and then we had to include the research
department again to run pivot tables, which they did, and you will see a
few of those here and more when I give you the report.

	It was such a task, and so the intern would run in my office and say,
okay, I have got these five questions.  What would you call this?  The
column would make so much sense in terms of allowing us to keep this
database in a way that didn't cause these enormous challenges.

	We are working with Tyson on an ergonomics program, which I will just
spend a couple minutes talking about.  They have just given me the 2009
logs.  I don't have an intern now.  I have to literally -- they are
nice, they include the summary sheet, so I know how many employees there
were -- but I literally will have to go through each and every box and
create our little table and then go back to my database and put these
in, and then run the pivot tables again.

	I guess in the spirit of what else can OSHA do, here needs to be
electronic records.  This is really outrageous that we have to spend,
those of us who do this work, and we are not talking just labor unions,
clearly, ergonomists do this as well, the companies do this as well, to
have to manipulate this data in a brand-new database when companies are
already keeping it electronically.

	I had a company tell a local union, no, we don't have to give you those
logs for 15 days, and so we, of course, had to educate the company that
no, you have to give it to us in 24 hours, immediately, over the fax
machine came the logs.

	They are already keeping the data in an electronic version, that they
don't also have to make the leap to have those records be in a database,
it is the missing link as far as we are concerned.

	I will talk about the baseline in a minute.  I told you how many were
covered, need for an easy way.  I am going to give you a little bit of
information on Tyson.

	This is what we found.  If I just look at meatpacking and I just look
at injuries, we find, again by our definitions, 37 percent of the
injuries were MSDs, the second leading cause was lacerations, I am
sorry, the number slipped off here, strains and sprains.

	Backs, we actually coded as a separate column.  Now, many of those
could go in MSDs, but we didn't do that.  We kept the backs separate
because we didn't want to be making decisions about where a back injury
went given the lack of data on these logs.

	That was for meatpacking.  Here is poultry, 14 percent MSDs, strains
and sprains were the third cause, 12 percent, lacerations were 15
percent.  This is Other.  Again, pain.

	Let me go back and you can just look at something pretty while I talk a
little more.  In fact, in respect to losing data and baselines, we are
doing a project with Tyson Food, specifically, their red meat plants.

	The way we got there was that I began the data with them.  We got the
locals to get the logs, we analyzed the logs, and the MSDs were through
the roof as a couple of the local unions had told us, well over 50
percent, and that is right off their own data, and they are the ones who
write it in really well.

	So, what we said was you are recording them really well, but what are
you doing to prevent them, and the restricted duty cases were through
the roof.  So, we approached corporate and said you have got a problem,
and they actually, at the same time, said to us, yes, we know we have a
problem.

	They actually had a baseline from which we can now use, two years into
our project with them, to restart a 20-year-old ergonomics programs. 
These are the old IVP plans.

	They have a baseline.  Without this data having been tracked by OSHA,
we are missing a lot of baseline upon which to build an ergonomic
prevention program.  In this case, we have one because this is a company
that, for a lot of reasons, had decided they were going to concentrate
again.

	I will say a lot more about that project in my written comment.  They
also have a computer system, because I asked them specifically how do
you tease out your MSDs, and he said we can do that because of the way
we have got it in our system.

	So, I am willing to bet that the big employers can do this pretty
easily, and to be honest, if they are in a high risk industry, they are
already doing it.  This is not rocket science.  This is adding a column.

	So, let me just say that another industry person said to me, a column
would be helpful and that he could not see any down side to it.  Now,
there is no industry here in the room, and I am afraid that the industry
that comes forward is the trade groups who will say this is bad, no more
regs.

	But if you talk to individual industry people, this is not a burden. 
As a matter of fact, in terms of the cost of this, I would venture that
they will save money.  Think of the money and the time and the effort it
took for us to analyze the logs.  They are doing some of that.  They may
have to push a button or whatever, but this will be an easier button to
push.

	I would actually propose that rather than this costing industry, it is
going to be a cost saving, to be more precise in how they are
categorizing it.

	Lastly, let me talk about restricted versus lost time cases, because as
Peg said, that is where we have lost the data.  If we are only counting
MSD cases with lost time, there are no lost time cases.  So, that is
such an underestimate of the problem.

	We put in comments during the stay, delay, we don't want to do it era
of OSHA and the Recordkeeping rule that for a very long time, companies
had not been giving workers lost time for injuries, let alone for MSDs. 
We see surgery on Friday, you are back in the plant on Monday, and that
is for carpal tunnel.

	So, there is no lost time, it is all restricted duty, and so without
counting those cases, there is nothing, there is no data, and here is my
data.

	If I look at columns H, I, J on the log, J being all injuries, and
other injuries and illnesses, H lost time, and I restricted duty, there
it is for meatpacking.  It couldn't be any more graphic to say where are
the MSDs.

	Now, specifically, I can't tell you that my database says that this MSD
case was a restricted duty case, but I can tell you that the majority of
that purple is MSD cases, and in poultry it looks about the same.

	So, there is a need for the column.  It will simplify life, it will
allow OSHA to gather data that have gone missing for 8 years, and it
will make my life infinitely easier.

	Thank you, and I will take questions.

	MR. MADDUX:  Thank you, Jackie.  Very interesting data.

	Are you guys doing analyses also at individual plants and using it at
an establishment level, and kind of how does that work?

	MS. NOWELL:  We actually have three projects going right now.  This is
with meat, large corporations, where we take the data to them and say,
okay, let's get cracking, we have got a problem here.  So, it has been
really valuable for that.

	MR. MADDUX:  Does the analysis of data actually sort of lead you then
to -- where does it lead you to, to just sort of investigations or to
solutions or --

	MS. NOWELL:  It leads us to saying we have got a problem and we need to
figure out how to fix it, exactly.

	MR. MADDUX:  So, problem identification is probably the biggest area.

	MS. NOWELL:  Exactly, is where is starts.  So, the whole issue of
counting numbers doesn't add to prevention, it's topsy turvy.  As Steve
was saying, Mr. Langer was saying often, while this is a lagging
indicator, show me one company that is not using this lagging indicator
to begin work.

	One would hope that we would use hazard identification as opposed to
injury, but we don't.

	MR. MADDUX:  Right.  You are obviously out in the field working with a
lot of workers and a lot of, you know the safety people at the
individual plants, and so forth.  Are they going to get the definition
or is it too murky for them?

	MS. NOWELL:  I asked Tyson for their definition. It is exactly your
first sentence, and the second sentence as Tricia said, is on causes, so
for that company, they put in their definition the causes that they are
using, and they are all very good to identify a case.

	I have asked for another company's definition, I was hoping it would
come before starting, and I don't have it, but I will try to have it.

	MR. MADDUX:  Well, if you can get those in your written comments later
on, that will be very helpful.

	MS. NOWELL:  Absolutely.

	MR. MADDUX:  Thank you.

	MS. SHORTALL:  You indicated that many employers are already using
electronic recordkeeping systems.  Do you have any idea of what would be
the cost involved in updating the systems?  You are shaking your head.

	MS. NOWELL:  Not at all.  Again, many companies still keep them
handwritten, and when we get them, we get them faxed to us, or we get
xeroxed copies of them.

	I would venture to say half of the logs that we got in that database
were still handwritten.  So, for them, it is no cost at all.  It's the
same exact system and check mark in a box.

	Again, for the folks that are using computers, they are pretty
sophisticated.  I can't imagine that this is much of a brain drain to
have to update that software, and Tyson told me that they actually
already pull out their MSDs, so for a high risk industry, I would assume
that this was already happening in some fashion.  Again, in order to do
prevention, they are counting numbers.

	MS. SHORTALL:  For the companies that you said you got the logs
handwritten, what were the size ranges of those companies?

	MS. NOWELL:  Big.  I mean in meatpacking and poultry, we don't
represent small companies, we represent large corporations, and this one
plant whose log is buried in here somewhere, is a plant of 1,200
workers, part of Smithfield Corporation.  I mean we are talking --

	MS. SHORTALL:  Hundreds of employees?

	MS. NOWELL:  Yes, 1,200.  The poultry plants ranged from, I don't know,
3-, 4-, 500, to well over 1,000.  These are not small businesses, in
other words.

	MS. SHORTALL:  The companies where you have employees, how do the
employers now go about analyzing or responding to an employee report of
pain to determine whether this is a work-related injury or illness?

	MS. NOWELL:  I don't know specifically.  I can speak to Tyson where we
are doing the project.  They have developed a medical tracking system,
and they code it A, B, C, A being subjective symptoms reported, and
these are their logs.  They write everything down, and they are
recording everything, and they are doing a lot of education to get
people forward with early.  So, that is their A column.

	Their B column is some kind of restriction putting them out on a
different job and on transfer, and by the way, when we went to the
industry with this, when we went to Tyson with this data, we said I
don't know how you run a business when you have got nobody on their job,
and everybody on a different job or on restrictions.  I mean this is
financial cost here big time.

	C, the category C being surgery, and what they are wanting is for
everything to be in A.  So, they are definitely going by the subjective
symptoms, and that has been our impression ever since the big push in
meatpacking in the '80s and '90s, that there is a wish to get -- and I
have to say surgeries are way down in both poultry and meatpacking.

	There is all the under-reporting going on, and I didn't get into that
very much here, but there is lots of reasons that people aren't on the
logs, and they have already been talked about, and OSHA has got an NEP
out there to try to look at this.

	But many people are getting in early, getting on restricted duty, and
able to stay on their job without surgery.

	MS. SHORTALL:  When employees come in and report their pain, are they
first sent to a health care provider to be examined, or are they just
put in restricted work?

	MS. NOWELL:  No, especially in these big plants, there is a health care
provider on site, there is a nurse, nurses, who are trained by the
corporation to recognize and assess.  They are the ones who assign
restricted duty, they are the ones who track them.

	There is an algorithm as in the old days with the red meat guidelines
for deciding when to send them to a health care provider.  In some
plants, a doctor, depending on Workers' Comp and the State, a doctor
actually comes into the plant and does the assessment, there is physical
therapy on site.

	This a big business, the medical management of MSDs in meatpacking and
poultry is a big business.

	MS. SHORTALL:  Are they able to make a diagnosis based solely after
examination, based solely on employee report of pain?

	MS. NOWELL:  I can't answer that.

	MS. SHORTALL:  Thank you very much, appreciate your coming here today.

	MS. NOWELL:  Thank you.

	MR. MADDUX:  We are getting close to a lunch break, but I did want to
open it up.  I know we had a number of people who got hung up coming
through Security and got to the meeting a little bit late, and sort of
missed this very short session where we ask people of they had any
questions for the OSHA panel.

	I just want to make sure, are there any people, a show of hands, who
wanted to ask the OSHA panel a question, and didn't get a chance to do
that?  Pamela.

	MS. SHORTALL:  Come to the podium, please.

	MS. VOSSENAS:  Pamela Vossenas, Unite Here.

	I know you asked us questions about did we train our members and how
did we use the information.  I would like to know what type of training
is OSHA planning to offer if this provision of the Recordkeeping
standard is made to workers, to unions, to employers, to whoever out
there is concerned.  Thank you.

	MR. MADDUX:  I guess the answer is we don't know yet.  So, we have had
some discussions certainly about the need for some sort of an outreach
effort following the issuance of a rule.

	In 2001, we did a mass mailing, for example, to every covered employer
that we could identify in our databases to provide them with the new
forms and the instructions, and so forth.

	The BLS does the same sort of thing.  They send out a mailing to all of
the people that are going to be in the next year's survey.  So, some of
those people would be included, but quite honestly, those are decisions
that we have not made yet, and for you and for anybody else, in your
written comments, if you have concrete suggestions for what you think
that we should do, then, that will give us some ideas that we can think
of.

	Obviously, it is like anything in the world, there are money and time
constraints, and so forth, and so we will have to make some hard-nosed
decisions at the end about how much we are going to do and which types
of outreach we are going to do.

	But certainly it is something that we are thinking about, and that
ideas would be welcome.

	MS. SHORTALL:  There hasn't been any significant OSHA rulemaking in
which there hasn't been outreach that has been planned for the release
of the rule.  I mean we do the compliance directives.  There are now
options for different types of webcasts.

	It is not only done by the National Office.  Once we train our field
people, they, in turn, become trainers of others.  But your specific
suggestions as to how it could be most effective both in terms of
reaching the most and resource effective would be greatly appreciated.

	MR. MADDUX:  Anybody else?

	MR. HALPRIN:  Hi.  Larry Halprin, Keller & Heckman.  Good morning.

	In the NAM settlement agreement, the language basically said if a case
is not recordable, the employee experiences musculoskeletal discomfort
of a minor nature, the person is sent to a health professional.  The
health professional says the person can perform all the functions of
their job.  In that case, it is not considered a restricted duty case
even though the employer puts the employee on restricted duty.

	It is very unclear.  Could you explain how this proposal would change
that?  I see language that says that that language will be deleted from
the compliance directive.  It appears that it is a substantive proposed
change in the interpretation of the rule that has been in place for 8
years, and I would like you to react to that.

	MR. MADDUX:  Well, it is a substantive interpretation, and it is one
that we are taking a look at, and so that is why we are proposing, in
this rulemaking process, to delete it, so that we can get some comment
on what the right approach is.

	We think that certainly there is some good reasons for issuing the
proposal that we had at the beginning of the rulemaking period, and as a
result of the settlement agreement.  At this time, we think that there
may have been some problems in how that interpretation was used over the
years, and, in particular, the difficulty.

	I don't know if you were here for Steve Newell's presentation, but the
difficulty is that the Recordkeeping rule has always included pain as a
recordable injury if it reached a level where it met restricted work or
the other recording criteria.

	So in this interpretation, you know, we kind of have this term of minor
musculoskeletal discomfort, and the problem is that sort of this
cognitive bias issue of, you know, your pain is my minor discomfort, and
where do we figure that out.

	We have heard of some cases where we have had employees who have been
in pain for a substantial amount of time, have been on
anti-inflammatories that didn't reach the recordkeeping definitions of
medical treatment, and so forth, that were not being recorded on the
logs.

	So, we are just trying to re-examine that issue and see if there is
something that we should do to improve that interpretation.

	MS. SHORTALL:  We are also doing, consistent with requirements of the
Administrative Procedures Act, so that is what we are doing in terms of
notice and comment, and why it is included in this rulemaking.

	MR. HALPRIN:  So, although the press release said all this was doing
was proposing to add an MSD column, and that is all that is stated in
the summary, you are treating this as a substantive proposal on that
issue.

	MS. SHORTALL:  The Federal Register notice was the legal document, and
it did cover that particular issue, as well.

	MR. HALPRIN:  Do you think it is appropriate to put a question like
that 8 pages back, in the middle of the Federal Register rather than
putting it in the summary?

	MS. SHORTALL:  It is a very short Federal Register document, and I
don't believe that anyone has had difficulty identifying or finding it,
I guess as evidenced by your questions here today.

	MR. HALPRIN:  Doesn't the document in the Federal Register say we are
not changing any of the substantive rulemaking interpretations about
recording criteria?

	MR. MADDUX:  We don't believe that we are changing the recording
criteria in any way.  This was always our intent that pain would be
recorded if it met the recording criteria.

	If cases do not reach the level of an injury or illness, then, they are
not recordable, they are not in the system, so that is the potential
difficulty of the interpretation.

	We don't think that we are being inconsistent at all, that the Agency
has had a very consistent view of what is supposed to be recorded on the
OSHA injury logs, and that we are not changing that.

	MS. SHORTALL:  What we are doing is talking about language that we
agreed to put into an initial compliance directive only, and that was
very clear language in the settlement agreement, and the settlement
agreement was also very clear in saying that nothing contained in it
affected OSHA's right to modify or interpret its regulations in the
future.

	So, that's what we are doing, and we are asking for comment on how we
might go about changing that interpretation, but it is not part of the
regulation itself.  It was language we agreed to put only in a
compliance directive.

	MR. HALPRIN:  Don't you agree that the law basically is when you take
an interpretation, formalize it, and put it in a document, and enforce
it for 8 years, it becomes part of the law, and you have to go through
rulemaking to change it?

	MS. SHORTALL:  That's what exactly we are doing today.

	MR HALPRIN:  Thank you.  I appreciate that.

	When the ergonomics rule, program rule was adopted, there was an
extensive discussion in the preamble in which OSHA concluded that
ergonomic MSDs were injuries.

	Is there an intent to change that interpretation through this proposal,
which refers to MSDs as illnesses in at least five or six cases in the
preamble, suggesting that the Agency is changing its definitions or
interpretation of these MSDs and calling them illnesses rather than
injuries?

	MS. SHORTALL:  I don't recall that in the ergonomics rulemaking that we
characterized MSDs as solely injuries.  In fact, we are clear to say we
thought they were sort of a hybrid.  They had some aspects of injury and
some aspect of illness, and in some ways, I don't think we did.  We were
very clear I think in calling them primarily disorders.

	MR. HALPRIN:  Do you recall that it was considered a 6B Section 38
Standard, and not a 6B5 standard?

	MS. SHORTALL:  We did consider it a 6B5 standard.

	MR. HALPRIN:  I would ask you to go back and look at the record, and I
believe you will find that is not correct.

	MS. SHORTALL:  We will certainly go back and look at it, but I do
believe our authority for issuing -- am I thinking the right thing, you
are not talking recordkeeping now, you are talking about the ergonomics
standard?

	MR. HALPRIN:  If you would look at the program standard, you will find
clear analysis discussion leading to the conclusion that MSDs are
injuries with the possible exception of vibration, which wasn't
considered significant enough to throw the case into --

	MS. SHORTALL:  I think we cited our authority as Section 6B5 of the
standard, but we also said that any standard also has to meet the
requirements of Section 38 of the OSHA Act.

	MR. HALPRIN:  We will be happy to submit comments and suggest you look.
 Thanks.

	MS. SHORTALL:  Thank you very much.

	MR. MADDUX:  Thank you, Larry.

	I would suggest that we all grab some lunch and that we gather back
together here at 1:15.

	[Luncheon recess taken from 12:07 p.m. to 1:18 p.m.]

	MR. MADDUX:  I think we could get started again.

	Our next panel up is Scott Schneider, Laura Welch, and Chris Trahan
from the Building Construction Trades Department of the AFL-CIO. 
Welcome, and it is all yours.

	MS. TRAHAN:  Thank you.  Good afternoon.  I am Chris Trahan.  We are
here representing the Building Construction Trades Department, which is
an organization of 13 national and international unions who represent
more than 3 million workers in the United States and Canada.

	Generally, in whole, we support this rulemaking effort.  I just wanted
to start by introducing our panel, Dr. Laura Welch and Scott Schneider,
who will tell you more about themselves, but also wanted to mention
something about the recent ACOSH meeting that occurred back in December.

	In the preamble to this proposed rule, you do mention that ACOSH
considered this rule and recommended unanimously to OSHA to go ahead and
publish the proposed rule, but I also thought that some of the
conversation that occurred in the committee would be of interest to
folks who are writing the rule.

	There was actually some employers who were interested in getting more
information collected on these logs.  It was interesting and it would be
a good read, and if you are interested I will submit some of the
transcript of posthearing comments, but that is about all I wanted to
say, and I will ask Scott to go next.

	MR. SCHNEIDER:  Good afternoon.  My name is Scott Schneider and I did
give four copies of my testimony and an attachment to it to Sarah to
pass out.

	I am the Director of Occupational Safety and Health for the Laborers'
Health and Safety Fund of North America.  The fund is a joint
labor-management fund associated with the Laborers' International Union
of North America, UNA, which represents about 500,000 workers who mostly
do construction work in the U.S. and Canada.

	I am a certified industrial hygienist and a fellow member of the
American Industrial Hygiene Association and on the AIJ Ergonomic
Committee, by the way.  I have been a practicing industrial hygienist
for over 29 years.  For about 20 of those years, I have been studying
and publishing in the area of construction ergonomics.

	I have published several reviews in this area including the first
American review of ergonomics and construction, a review of the data on
musculoskeletal injuries in construction, and book chapters on
construction ergonomics.

	I also helped to organize several international symposia on
construction ergonomics in conjunction with the International Ergonomics
Association triennial meetings, and for 10 years I was the Ergonomics
call-in director for the Applied Occupational Environmental Hygiene
Journal.  I am a member of the AIJ Ergonomics Committee and former
member of the OSHA Advisory Committee on Construction Safety and Health,
ACOSH, and the NIOSH Board of Scientific Counselors.

	I am testifying today in support of the OSHA proposal.  In 2001, I
published a review of musculoskeletal injuries in construction, a copy
of which I have given you.  My goal was to give readers an idea of the
scope of the problem.  To do so, I surveyed many different sources of
data from the BLS published data to peer-reviewed journals,
international studies, as well.

	It was a difficult process because there was no one place to find this
information.  BLS has several different definitions that can be
classified as MSDs, such as sprain or strain injuries, overexertion
injuries, those due to bodily reaction.

	Symptom survey in construction show large percentages of construction
workers suffering from problems like back pain.  The conclusion of this
review was that construction workers suffer from about 50 percent more
MSDs than other types of workers.

	By having a separate column on the OSHA log, all of these various
related disorders can be grouped together, and there can be one easy way
to gauge the scope of the problem.

	As MSDs represent about a third of all injuries in construction, it is
critical to be able to identify and address these in any injury
prevention efforts.  In the past 10 years, there have been new efforts
by unions, trade associations, and government, State OSHAs and NIOSH, to
tackle MSDs in construction along with the new ANSI Standard A10-40,
which I worked on.

	All such efforts will be greatly aided by having a consistent
definition and standardized and centralized place to record them.

	To prevent a problem, you have to understand its cause.  MSDs in
construction often have a common origin in material handling or other of
exertion tasks.  If an employer could easily see which cases were MSDs,
he or she could look at them as a group and see common patterns.

	Material handling could result in back, shoulder, arm, neck strain. 
Putting these together as MSDs makes these patterns clearer.

	Many construction companies are committed to driving towards zero
injuries on their work sites.  To do so, they must have more information
and be able to easily see how many MSDs they are having, where they are
occurring, what workers are doing at the time of injury.  Adding this
column to the log will help.

	DR. WELCH:  Good afternoon.  I am Laura Welch.  I am a physician with
specialization in occupational and environmental medicine.  I spent
20-plus years as an academic before I went to work for my current
employer, the Center for Construction Research and Training, which is a
non-profit research institute devoted to improving health and safety in
the construction industry.

	A lot of my career was spent treating and working with construction
workers around health and safety including ergonomics.  At CPWR, I am
the Medical Director, and I direct the ergonomics programs, so I have
many years of experience evaluating health claims, medical records for
MSDs, and evaluating individuals with musculoskeletal disorders.

	I think adding this column is obviously a very good thing to do.  I
mean I am going to somewhat repeat what Scott had said and what other
people have said earlier today, but I also think it is important that
the column and the MSD check will include all MSDs, and not just the
ones that have lost work days.

	I think Jackie Nowell made a very good case for that.  In my
experience, a lot of MSDs return to work with restricted duty, and if we
are not capturing those, we are losing the ability to really see the
whole picture.

	So, grouping all the work-related MSDs together really is important for
prevention.  The example that I could think of is overexertion and
manual material handling could lead to back strain, a shoulder strain,
or some hand or arm injury, but it is all related to that particular
hazardous task and occupation.

	So, for using surveillance and identifying MSDs so that we can go back
and figure out the root cause in the workplace, grouping them together
is much more effective than looking at them specific condition by
specific condition.

	If an employer has thousands of employees and hundreds of injuries,
specific condition analysis might be useful, but for smaller employers,
the only way to find a pattern would be to group them into a larger
group.

	So, if someone looks only at shoulder injuries, it may take them five
years to get enough experience to say oh, that overhead task is causing
shoulder injuries, but if they are grouping together hand, arm,
shoulder, thorax, back injuries, the relationship with specific work
activity is going to appear much more quickly.

	So, from a biomechanical point of view, and from a medical point of
view, it really makes a lot of sense to group them together rather than
keep them separate.  So, I think it's a really good idea as well as
expanding the universe of MSDs that are being recorded by including all
recordable MSDs, not just lost time cases.

	When OSHA proposed adding this column in 2001, there were some
organizations that commented that there is no generally accepted
definition of an MSD, so I don't think this rule is asking employers to
diagnose an MSD. You don't need diagnostic criteria, diagnosis is for
physicians.

	Now, many MSDs are predominantly symptom based, and that is true for
other medical conditions, as well, and the symptoms can be severe.  The
symptoms from a physician point of view, we understand that there is a
symptom complex that leads you to specific diagnosis, and professional
organizations like the American Academy of Rheumatology diagnose
diseases based on the presence of a range of symptoms.

	So, symptoms are very important, it is not something to minimize and
say, oh, that is just somebody complaining and they have pain.  That is
the core of the diagnosis of many of these conditions, so I think it is
really important that OSHA made it clear that pain and symptoms are an
important part of what goes into determining whether something is a
recordable musculoskeletal disorder.

	The regulation, as I understand it, is not changing what is a
recordable condition, it is clarifying what is a recordable condition, I
think providing very useful information to employers to determine what
to record and what to record as an MSD.

	The definitions that are in the proposed rule are very similar to what
has been used in the ergonomic program management guidelines and what
the BLS uses in its definition.  I think Jackie Nowell addressed that
pretty well before.

	Overall, I think it is a really good addition, the column and expanding
the definition helping employers determine how to record these cases,
because once there is a more systematic and comprehensive way to record
MSDs as a group, the patterns of the work-relatedness and the causes
will be much more apparent, and we can really move forward with
prevention.

	So, I think you are providing a tool for the employers to do it, as
well as the tool for outside consultants or OSHA to better see the
patterns of MSDs.

	In the construction industry, it is a major problem.  It is in a lot of
industries, but MSDs, back injuries in particular represent a third of
all the injuries and almost half of all the costs, so anything that
helps the construction industry in particular improve identification of
root causes and risk factors will help construction workers and the
industry as a whole.

	So, thank you for the opportunity to comment today.  Thank you.

	MR. MADDUX:  Thank you.

	We have heard several examples today of situations where people have
done sort of these analyses of MSD in individual workplaces, which, of
course, in the construction sector, means something a little bit
different because of the project nature of the work.

	Do you have any examples of these types of analyses in construction,
companies or construction settings that are sort of parallel to that? 
Are people doing these kind of analyses?

	MR. SCHNEIDER:  I haven't done any, and I don't know specific companies
that have or haven't.  I mean I am sure that there are, and many of the
trade associations have been addressing these issues.

	One thing that they have done is some of the trade associations have
used their insurance carriers, which have looked at compensable injuries
to look at where their Comp costs are, and how many of them are
musculoskeletal related, and trying to attack it through that direction.

	DR. WELCH:  At CPWR, we have had experience with some research projects
and with working with some large employers to look at MSDs.  It hasn't
been using the OSHA log in particular.  It has been looking at the
injury records themselves.

	MR. MADDUX:  Right, so they really tried to go at it more from the
insurance data.  Do you think that this MSD column will be better in
some ways than the insurance data, or different, or worse?

	DR. WELCH:  He would say insurance data.  I really don't know.

	MR. MADDUX:  Okay.  Well, you can think about that.  If there is
something that makes sense in your written comments that you want to
submit later, that would be great.

	MR. SCHNEIDER:  I think one of the problems is the insurance data,
there is a lot that isn't captured in that.  I mean a lot of people
don't file for compensation, so there is a lot of people that have like
back pain and work through it.

	We did a survey about, I don't know, it must have been 15 years ago,
3,000 construction workers in the Midwest, they found 40 percent of them
said one of their biggest problems was working while they were in pain.

	So, I think a lot of them are not filing for Comp.  It is difficult to
go out on Comp, you know, because they are not going to get paid, I mean
for a while.  I mean if they don't work, they don't get paid generally,
and they may file for Comp, and it may take a while to adjudicate.  It
is a difficult system.

	So, I think there is probably a lot of stuff that would get captured on
the log that may not get captured by the Workers' Comp system.

	MS. SHORTALL:  Following up on this issue, the employers who are using
the Worker Comp information to try to do some analysis of MSDs, would
they also find an MSD column in conjunction with their Workers' Comp to
be a useful tool to do analyses and tracking?

	DR. WELCH:  From my point of view, it would be useful for the reason
that I described where it sort of the insurance data may represent 20
percent of all the MSDs that are occurring among a group of construction
workers, so if you want to find the root causes, you are not using too
small a sample size, and they may not be representative of your bigger
problems.

	It is hard to know which cases are the ones that involve Compensation,
but whether the specific employers would be using it, I can't really say
specifically.

	MS. SHORTALL:  Dr. Welch, as a clinician, how do you determine if a
person presenting with pain has, well, let's say, an injury and illness
that may be related to work?  How do you go about determining that?

	DR. WELCH:  There is a Henry Youngman joke about that.  "Doctor,
Doctor, it hurts when I do this."  "So, don't do this."

	I mean in some ways, but occupational medicine, we always trained
medical students that you need to ask what people do for work, and with
an MSD, with a work-related MSD, their work is going to be aggravating
it when they are doing the activity that caused it.  So, that is part of
where you start is looking at the relationship between work and ongoing
symptoms.

	Since something being work related can be primarily caused, contributed
to, or aggravated by, once someone's medical condition is being
aggravated by work, you know there is a work-MSD interaction.

	From a treatment point of view and a clinical point of view, that is
enough to want to go in and do something about that individual's work,
work environment, if you can, and then to determine whether it's
compensable, there are a lot of different questions you ask, is it
recordable, is it compensable.  Those are different questions once you
have determined there is some work relationship with the MSD.

	So, a lot of it is the medical history.

	MS. SHORTALL:  As a clinician, have you found that when an employee has
pain, that employers are generally referring them to a health care
provider for examination or assessment?

	DR. WELCH:  Well, I think it varies.  You know, I am the clinician, so
I am seeing them, but often not referred by the employer, often referred
by a co-worker, or referred by their union.  I think of a large employer
here in D.C. that I worked with, and initially, I was the problem
because I was finding all these cases, and maybe if I weren't around,
they wouldn't really have a problem, but after they kind of got through
the initial shoot the messenger point of view, they hired their own --
developed an in-house stay for capability, the way Jackie Nowell was
talking about in the big meatpacking plants.

	So, they were actively referring, encouraging people to report and to
go directly to their in-house providers, so that they could make a work
intervention before it rose to the point where they had to refer
somebody to outside medical care.

	So, there was a big shift in the initial recognition then led to saying
okay, we have a problem and now we are going to really try to get ahead
of this, find people when they are symptomatic early on, and adjust
their work station, follow them, try to keep them in a way away from a
provider, because we don't care if it's recordable or not.  We want to
keep it from getting worse and adjust that problem for their co-workers,
so other people aren't affected.

	MS. SHORTALL:  This question is for all three of you.  This morning,
Ms. Seeley from AIHA suggested that it would be helpful if OSHA included
risk factors in its definition of MSD.

	Could I get your opinion on that notion?  Would you support that?  Is
that something you would find helpful, not helpful?

	MR. SCHNEIDER:  I don't believe she said that it should be in the
definition.  She talked about putting it in guidance.

	MS. SHORTALL:  That's fine, yes.

	MR. SCHNEIDER:  And I think i guidance it would be very helpful to give
people an idea of, you know, how do you determine whether these may have
been work related. If people are doing jobs, if people have these
symptoms, and yet they are not doing anything that -- they are not
exposed to any of the risk factors, then, you can draw different
conclusions.

	So, I do think it would be helpful in guidance.

	DR. WELCH:  I do, too.  I mean I think you have got two parts to
determining whether these cases belong on the log.  One, is it an MSD? 
Two, is it work related?

	So you are providing a lot of information on the MSD part.  People, for
as long as OSHA has had a recordkeeping rule, they have had to make this
work-related determination, but now is an opportunity maybe to enhance
that and to help people, get them to focus on MSDs and provide them
guidance on what makes an MSD work related, which includes the risk
factors.

	MS. SHORTALL:  What about you, Ms. Trahan?

	MS. TRAHAN:  They answered.

	MS. SHORTALL:  This is for any and all of you. To what extent would you
say that the construction industry currently uses electronic methods for
recordkeeping?  Don't all speak at once.

	MR. SCHNEIDER:  I really don't have a clue as to I haven't seen any
data.  I think there is a lot of companies that are and probably a lot
of small ones that aren't.  But I think clearly, that is changing over
time as computers get cheaper, get easier to use.  I mean software gets
cheaper.  I think it is definitely changing, but I really have no idea
of how many or what percent.

	DR. WELCH:  Except that the industry as a whole is made up of small
employers, so that there is, what, 80 percent of construction employers
have no employees, and 90 percent have fewer than 10.  But then there
are some really big ones.  So, you can't really make a generalization
about the industry in the way you might be able to generalize about the
auto industry, because the spread of employers are so big.

	MR. SCHNEIDER:  One thing I will add, though, is I think computers are
becoming more and more common and more useful in construction.  I mean
there has been a big push for what is called building information
modeling where a lot of building construction is being done through
computer-assisted design, and information systems for scheduling
projects.  I mean I a lot of computers are being used on construction,
but more on the larger projects.

	MS. SHORTALL:  The proposed rule came forward with the idea that
possibly OSHA could develop some software, so employers could use to
move to electronic recordkeeping.

	To what extent do you think that would be useful in the construction
industry?

	MS. TRAHAN:  I think it would be very useful.  I think that anything
that you can hand employers to help them comply with the regulations is
appreciated, and I believe that the e-tools that are out there in the
construction sector are widely used and embraced by the industry, and
this would just be another e-tool really the way it sounds.

	MS. SHORTALL:  Mr. Schneider, you talked about how useful having an MSD
column would be for those who are doing research on any type of
industry, but you were focusing on the construction industry.

	How would an MSD column be useful to establishments themselves?

	MR. SCHNEIDER:  Well, I think it will make it easier for employers to
sort of group those injuries and try to look at, well, what are these
people doing that possibly could be contributing to those injuries.

	I mean a lot of exposures in construction are trade-specific or
task-based, task-specific, and I think you could see, well, which of
these workers, as Laura was saying, have shoulder injuries and are
working overhead or knee problems that are working at ground level or at
roof level.

	I think that will point people in the right direction towards
prevention activities, so I think it will be helpful.

	MS. SHORTALL:  Dr. Welch, you mentioned that 90 percent of the
construction industry is comprised of companies that have 10 or fewer
employees, is that correct?

	DR. WELCH:  Yes, and I will make sure we give you the data from -- we
have a construction chart book that has got all that information, but I
will make sure it is right.

	MS. SHORTALL:  If a company has so few employees, it would seem that
they might be able to keep track of something like MSDs without the need
to also have an MSD column.

	So, to what extent would an MSD column be useful for an industry that
is comprised 90 percent of small employers?

	DR. WELCH:  I think that for a small employer tracking injury rates
isn't very helpful.  Sometimes a single event could be enough to say,
because it was your son in law, or it's your uncle, a single event is
enough to say, well, I don't want that to happen again, what happened. 
So, I don't know that the -- the MSD column is really useful for rates,
but those small companies are working on projects that wrap up to many
different workers.

	You know, you could have like the Denver International Airport, which
had 130 different contractors on it at one point in time, or, you know,
the City Center in Las Vegas.  You know, you could have 100 small
employers on one big project, and many of those projects have, if they
are big enough, they have an owner-provided insurance plan, so this
would be very useful I think to those owners because you can wrap up the
MSD data much more quickly.

	So, instead of it being useful necessarily to the small employer, in
those settings, the small employer is not really doing the injury
prevention, it is kind of at the level of a super-safety consultant who
is working for the general contractor or the owner.

	Now, that is a small proportion of projects that have those wrap-up
insurance programs, but in those programs you see much more active
management of injury, much more active return-to-duty programs, because
you have got one person who is owning the cost of the injuries, and I do
think in that setting, it would be very useful to them.

	Now, I haven't heard that from those big companies, but I think
otherwise, they are having to get this information from the multiple
employers on the site, so if the employers are checking it on a log, I
think it would be much quicker, and the responsiveness of the safety
consultants could be much faster to the presence of an MSD.

	MS. SHORTALL:  This is my last question.  Let's take that construction
company and double or triple its size.  You know, it's 20, 30, 40. 
Would the MSD column provide useful rate information for them, or is it
mostly going to be the usefulness will be as it is for the smallest
employers?

	DR. WELCH:  I think it will be useful once you are getting into that
range you are talking about.

	MS. SHORTALL:  Thank you.

	MR. SCHNEIDER:  I would just add, you know, if you look at all
injuries, since this is such a large percentage of the injury picture,
this is probably going to crop up more often than other kinds of
injuries that would be rarer.

	DR. WELCH:  So, then once you are getting into 20 employees, you are
going to start to see important patterns.

	MS. SHORTALL:  Thank you very much.

	MR. MADDUX:  Thank you, appreciate it.

	Next, we will have David LeGrande of the Communications Workers.  I
think he has just joined us.

	MR. LeGRANDE:  Good afternoon.  The Communications Workers of America,
AFL, CIO, CLC, Central Labor Canadian Labor Congress, I should say,
appreciates the opportunity to present comments regarding the
Occupational Safety and Health Administration's proposal to revise the
Agency's Occupational Injury and Illness Recording and Reporting
regulation, or I will refer to it as Recordkeeping, to restore a column
to the OSHA 300 Log requiring employers to record work-related
musculoskeletal disorders or MSDs.

	CWA represents some 600,000 workers throughout the United States
employed within the telecommunications, electronics, automotive, and
furniture manufacturing, airline, health care, and medium broadcasting,
printing and publishing, and public sectors.

	CWA has been actively working to identify and resolve work-related MSDs
for more than three decades. Therefore, CWA fully supports OSHA and the
Agency's work to establish the proposed regulation.

	As noted by OSHA in the January 19, 2010, Federal Register, the 2001
Recordkeeping final regulation included an MSD column, but the
requirement was deleted before the regulation became effective.

	This proposed rule would require employers to place a check mark in the
MSD column instead of the column they currently mark if a case meets the
Recordkeeping's regulation general recording requirements.

	Again, CWA fully supports OSHA, adding an MSD column on the OSHA 300
Log, and thus, the regulation.

	During the period, that is, 2001 to 2003, when OSHA considered deleting
and did delete the MSD column from the OSHA 300 Log.  CWA identified
numerous instances whereby represented employers failed to accurately
record MSDs on the OSHA 300 log.  This action, particularly involving
represented telecommunications employers, led to significant
under-reporting and accurate identification and resolution of MSDs.

	In turn, such under-reporting led so significant difficulties in
accurately identifying and resolving work-related MSDs both by the
employer and the union.  We will provide examples of this conduct in our
full comments to be submitted later this month.

	The addition of an MSD column to the OSHA 300 Log would allow for the
collection of important information specific to identifying and
resolving work-related MSDs.  Also the collection of accurate MSD data
would assist OSHA in determining targeting activities specific to the
Agency's inspection outreach, guidance, and enforcement work, as well as
help develop and maintain complete and accurate national occupational
injury and illness statistics.

	The importance of such work should not be underemphasized.  Rather, the
collection and use of accurate MSD data would be a tremendous aid in
identifying and resolving the leading type of U.S. workplace injury and
illness cases, that is, MSDs.

	Again, CWA will provide further comments in this case, an excellent
example specific to a major U.S. health care employer and joint work
with the union in using previous OSHA logs which called for repeated
trauma to be noted in the OSHA log.

	Those efforts to identify cases and resolve them, which in turn has led
to not only substantial economic savings by the employer, but also
increase the well-being of employees insofar as far fewer than develop
MSDs both in terms of numbers and in terms of severity of illness.

	Also, establishment of the proposed regulation would be most useful to
CWA outside of the health care industry and our continued work to
identify and resolve member work-related MSDs with other employers
represented again by our union.

	In CWA's full comments, again to be submitted later this month, we will
target employers within two additional represented industries, that is,
telecommunications and manufacturing and demonstrating the need for
adding the MSD column.

	I might suggest in part that as I noted, the significant decrease in
reporting of cases within the telecommunications industry starting in
that 2001-2003 time frame led employers to record MSDs at a 1 percent
rate as opposed to the 6 percent rate that they had recorded the
previous year without any improvement in working conditions.

	Upon more detailed analysis of their absenteeism data, which includes
work-related and nonwork-related cases, which I conducted, the rate
actually was 12 percent.

	So, again, the MSD column being included on the OSHA 300 log is
extremely important relative to the under-reporting of MSDs.  For the
purposes of this regulatory action, MSDs are defined as, I quote,
"disorders of the muscles, nerves, tendons, ligaments, joints,
cartilage, and spinal discs, except those caused by slips, trips, falls
motor vehicle accidents, and other similar accidents."

	Of note, this is the identical definition contained in the 2001 final
Recordkeeping rule.  Use of this definition is extremely important to
the accurate identification and control of MSDs.  For example, the
present CWA's, the union's Occupational Safety and Health Department is
conducting our sixth annual IUE-CWA injury and illness investigation
representing hundreds of U.S. electronics, automotive, and furniture
manufacturing employers and workplaces.

	In part, this work involves a collection review and analysis of injury
and illness data in employer-maintained and provided OSHA 300 Logs.  As
we carry out this work, we often see employers, particularly small
employers, and I emphasize that, particularly small employers,
misclassify and misreport MSDs as sprains and strains related to slips,
trips, and falls.

	This change in the reporting regulation would allow them to better
clarify the cause of the issue, that is the incident itself, as well as
developing a more comprehensive program within their place of
employment.

	Therefore, use of the proposed definition would make it easier for
employers to record and maintain accurate MSD data, and equally as
important, allow CWA and represented employers in joint activity to
collectively identify and resolve work-related MSDs.

	Thank you again for allowing CWA to present and we look forward to
submitting our full comments later in the month and again would like to
let you know again that we fully support OSHA in the establishment of
the Recordkeeping regulation.

	I am open to any questions you might have specific to what I have
commented on, but also our experience in terms of identifying and
resolving MSDs with represented employers through use of the OSHA 300
Log in particular.

	MR. MADDUX:  Have you been doing those types of analyses off of the 300
Log, David, your locals?

	MR. LeGRANDE:  I work with our locals, I really do most of the
analyses, but I work with the locals in educating them as to how to do
bootstrap analysis you might say, basic analysis, and also to work with
the employer representatives.

	Again, many of these are smaller employers, so oftentimes the employer
representatives are not full-time safety and health personnel.  They
have many assignments including safety and health.  So, they are not
experts in this field.  Our folks work with them and provide their
expertise to ensure that these cases are reported more accurately.

	MR. MADDUX:  But are they actually able to conduct some analyses of
MSDs?

	MR. LeGRANDE:  Yes.

	MR. MADDUX:  So, they are able to.  How is that going, is that fairly
straightforward for them, is it very difficult?

	MR. LeGRANDE:  It really depends on the sophistication of the employer,
quite frankly.  By sophistication of the employer, I really mean if it's
a large employer or a small employer.  That is what it usually comes
down to, a large employer in terms of having the financial resources to
hire a full-time safety and health person, particularly if that person
has a background in ergonomics, for example, an industrial hygienist.

	We find that those employers record more accurately on the OSHA logs,
and smaller employers, again because the expertise is there on the
employer's side, to identify a particular type of illness and injury,
and then categorize it as such on the OSHA log.

	We do find at present, since the column was removed, on repeated
trauma, that is, that it is much more difficult for local union safety
and health activists to identify MSDs, because they are often
misclassified and misreported, or not reported at all.

	Employers are not docs or hygienists.  They don't know what a
tenosynovitis is, or a tendinitis is, or an epicondylist is, or the
other lengthy list of itis's and disorders might be.

	MR. MADDUX:  The duties analyses, do they find them useful in their
prevention efforts, are they able to actually get some utility out of
that data?

	MR. LeGRANDE:  Yes, they do.  They present this information again.  I
work with the local unions in developing the reports, and we, in turn,
present them through the joint collective bargaining safety and health
committees, or collective bargaining agreement where there is not a
safety and health committee to address the issue with the employer to
put the issue on the table, so to speak, with the employer, and work
toward resolution of the identified problems.

	MR. MADDUX:  That is all for me.  Sarah?

	MS. SHORTALL:  Thank you for coming today, Mr. LeGrande.  In the
industries where you have members, how would you characterize those
industries, primarily small employers, larger employers?

	MR. LeGRANDE:  I would say it's a mix.  It is not necessarily all large
employers.  On the telecommunications side, of course, we represent AT&T
and Verizon, and those you could characterize as large employers.  We
also represent Quest, a mid-sized employer now, and we represent other
employers in that industry like Frontier, that are much smaller.

	In an aggregate sense, they have thousands of workers, but on a
workplace-specific basis, you might find as few as 5 to 10 employees in
a work location, so we really have a mixed bag, but on
telecommunications more large than small.

	In manufacturing, as we have seen, the movement, using a polite term,
the movement of manufacturing overseas, or south of the border, we have
seen our large employers make those moves.  You have probably heard just
recently that Whirlpool is moving to Mexico from Evansville, Indiana,
and taking 1,000 jobs from Evansville to Mexico.

	This is an employment relations meeting, so I won't elaborate, but what
that has caused the union by the movement of large employers, GM is
another classic example, as well as GE, it has left us with smaller
bargaining units, smaller employers, and again it really has made it
more difficult for the union to work on "work and resolve" safety and
health issues because of the more limited resources that these small
employers have.

	MS. SHORTALL:  At the companies where your members work, do most of
them use electronic recordkeeping?

	MR. LeGRANDE:  Most of them do.

	MS. SHORTALL:  Do you think that any of those employers would have
major difficulties updating their electronic recordkeeping systems to
include an MSD column?

	MR. LeGRANDE:  No.

	MS. SHORTALL:  Could you explain why you say that?

	MR. LeGRANDE:  These employers already use computerized systems, so
there really would be no burden placed on them at all, that they don't
already have, quite frankly.

	MS. SHORTALL:  You don't think there would be a burden for them to
update their whole system, so it now includes an MSD column?

	MR. LeGRANDE:  No, I don't think it would be a burden upon them.

	MS. SHORTALL:  All right.  Thank you very much, appreciate your coming
here today.

	MR. LeGRANDE:  Thank you.

	MR. MADDUX:  Our next speaker is Karen Harned from National Federation
of Independent Business.

	MS. SHORTALL:  Before Ms. Harned speaks, Mr. LeGrande, do you have
copies of your written testimony that you would like to give us and put
in the record?

	Thank you.

	MR. MADDUX:  Great.  Thank you.

	MS. SHORTALL:  Ms. Harned, did you have written copies of your
statement that you would like to put into the record?

	MS. HARNED:  I do not with me.  Is that something I can submit
afterwards?

	MS. SHORTALL:  If you would like to, sure.

	MS. HARNED:  Thank you for the opportunity to provide comments today
regarding OSHA's effort to make these proposed changes to its 300 Log.

	I am Karen Harned.  I serve as the Executive Director of the National
Federation of Independent Business, a small business legal center.  The
small business legal center is the legal arm of the NFIB.

	NFIB is the Nation's leading advocacy organization representing small
and independent businesses.  Our membership spans the spectrum of
business operations ranging from sole proprietor enterprises to firms
with hundreds of employees.

	While there is no standard definition of small business, the typical
NFIB member is going to have around 10 employees and report gross sales
of around $500,000 a year.

	The NFIB membership is a reflection of American small business, and I
am here today on their behalf to share a small business perspective with
OSHA.

	OSHA's proposal to add a musculoskeletal disorder, MSD column to the
OSHA 300 Log raises several flags for small businesses.  We fear that
once again, OSHA's top estimates for compliance are severely
understated.

	In this proposal, OSHA estimates that compliance will require five
minutes for management to read and sufficiently comprehend the standard.
 Then, it estimates that correctly identifying an MSD and marking the
log will take an additional minute for each entry thereafter.

	This estimate demonstrates OSHA's fundamental misunderstanding of how
small businesses operate and the likely actual cost that small
businesses are going to incur to comply with the rule.

	In the majority of our members' businesses, the task of complying with
this rule is going to fall on the small business owner.  Being a small
business owner often means that you are responsible for everything
including balancing the books, ordering inventory, hiring employees, and
serving as the Chief Safety Officer for your business.

	For a small business owner, good-faith efforts to comply with vague,
overly technical, and hard to find regulations can require significant
time away from their business, time that could be better spent growing
their enterprise and employing more people.

	Here are just a few ways that small business owners may not be able to
comply with this rule and the time that OSHA is currently estimating.

	At the outset, it could take much longer than five minutes to
comprehend the requirements since small business owners are not
specialized in handling issues like this.  Small businesses lack the
resources to hire specialized regulatory compliance staff and
identifying whether or not an MSD was sustained or would be aggravated
in the workplace is going to be far more difficult for them.

	Small business owners are not medical practitioners and OSHA's
assertion that the responsible person would only take an additional
minute from the time they take now to mark the form fails to recognize
that the time to make the entry determination is going to go up, as
well.

	The new definition of MSD will add layers of complexity for small
business owners trying to determine the type of injury that they are
faced with.

	Lastly, because they fear they could be found out of compliance by
OSHA, it is likely that small businesses will over-report MSDs.

	These are the kinds of considerations that are likely to have been
brought to OSHA's attention if the draft rule had gone through reviewed
by a SBREFA panel.  That kind of review is required for a rule that
would have a significant economic impact on a substantial number of
small entities.

	We understand that you think as percentage of revenue and profit cost
triggers, OSHA certified to SBA that the rule would not have a
significant economic impact on small entities, and thereby avoided
having a SBREFA panel.

	But it is clear that contrary to applicable legal requirements of 5 USC
Section 605(b), that certification did not have a factual basis.  To say
that compliance will require five minutes initially, and one minute for
each case thereafter, is highly inaccurate to say the least.

	Before this proposal goes forward, NFIB calls upon OSHA to go back and
calculate a realistic estimate of the time that is likely going to be
required for compliance with the rule, and then submit another
certification to SBA based on a genuinely accurate factual basis for the
estimate of costs for small businesses.

	We are hopeful that the process of doing this will reveal the real
effect of the proposal on our members and perhaps persuade OSHA to
modify its approach to this rule for small business.

	OSHA is aware the MSD component of the OSHA 300 Log was part of the
Agency's larger effort a decade ago to promulgate a nearly 5 billion per
year rule on ergonomics, therefore, the small business community is
deeply concerned that OSHA is planning future action to replicate this
highly contentious rule.

	After hearing the discussion at the recent OSHA Listens session, we are
concerned that OSHA will use data collected as the result of the
proposed change in MSD recordkeeping to somehow inject ergonomics
regulation into a safety and health program standard that OSHA seems to
be contemplating.

	OSHA has indicated that adding an MSD column to the log in no way means
that it is looking to revive the ergonomics proposal.  We hope that this
is true.  If, however, OSHA pursues the ergonomic regulations in some
form, we hope that the Agency would make a decidedly stronger effort to
engage small businesses in the process of discussing any proposal before
it has developed an issue.

	Let us work in conjunction to assure that workers are safe and
businesses are not heavily burdened particularly in this economy.

	As OSHA moves forward with the MSD proposal, it should make a concerted
effort to help small business owners.  For starters, the definition of
an MSD must be easily understandable by the lay person.  The more
complicated the definition, the more likely it is that MSDs are going to
be misreported by small companies.

	We believe that OSHA should clarify the term "work related" in its
definition of MSDs and indicate that the term means only MSDs that occur
because of a situation at the workplace, not because the injury
occurring elsewhere is aggravated at the workplace.

	This is especially important if the rule is going to define an MSD to
include common symptoms like tingling and lower back pain.  OSHA should
also define a detailed compliance assistance program for the rule, that
goes well beyond merely listening to definitions of MSDs on a web site.

	Ideas for compliance assistance training materials could include a
training video explaining MSDs, that would be available on the web site,
assigning staff to field questions from small businesses trying to
determine what type of entry they are confronted with and assuring those
small business owners that by calling, they are not becoming the target
for enforcement, and a web page that frequently asked questions from
small businesses is posted on with easy to understand answers.

	On behalf on NIFB and our members, we do appreciate the opportunity to
express our concerns of this proposal.  We believe that OSHA needs to
put itself in the shoes of small business owners as it moves forward,
not just with this proposal, but with others.

	Small business owners greatly value the safety of their employees.  In
many instances, they are their family members, to the extent they are
not, they very much view them as part of their family.

	Please take every step possible to ensure that the rule is not overly
burdensome to them.

	Thank you.

	MR. MADDUX:  Thank you, appreciate the comments.

	I would like to go through a couple of points that I went through with
a small business representative earlier, and that is, first of all, that
the Recordkeeping regulation, as a whole, exempts all employers with 10
or fewer employees.

	MS. HARNED:  Right.

	MR. MADDUX:  And it exempts all employers regardless of size in a
number of industries, so huge numbers of employers are exempt from
keeping records at all times.  They keep them just periodically to help
with the BLS surveys, and so forth.  I just want to make sure that
people understand that.

	The time component, when we talk about the five minutes and the one
minute things, that these are incremental costs above what employers are
doing now and at their average cost per case.

	So, it isn't that we think that it is five minutes to learn all of the
Recordkeeping rule or everything about the MSDs, it is just five minutes
to learn how to check a column for a case that they are already
recording on their logs, which is another key point.

	We are not asking people to record new cases here.  We are just asking
them, after they record a case, to check the MSD column.  The context of
it I think needs to be kind of just kept in mind is all that I am
pointing out.

	I think you raised some very good points especially about an easily
understood definition.  This is a continuing problem with a number of
these areas, and so we would certainly welcome any kind of a comment
that your organization would have about how to create a more
understandable definition for small businesses and for employees and
everybody that is involved.

	That is certainly a major goal.  I don't know if your organization has
any ideas in that area.

	MS. HARNED:  We are planning on submitting comments, and I will take
that into consideration as we continue to deal with that.

	MR. MADDUX:  We really would welcome that.  Your ideas on compliance
assistance are very, very helpful.  I would say that this is an area
where, you know, we have people right now who answer these kinds of
calls both on our 800 number, we have recordkeeping specialists at each
one of our regional offices.

	They are handled by people in our consultation programs at the State
level, and at all of those calls, people really should understand for
everything that they call OSHA with.  We have lots to do, we are not
like using the caller ID to figure out where to go and visit people
because we don't have time for that.

	So, when people call and ask questions, we try to answer their question
to the best of our ability, but I hope people really do get the message
that there is no retaliation for calling OSHA or for going on the web
site. We have heard this same sort of urban legend many times over the
years.

	MS. HARNED:  We hear it from our members.  I mean there is a genuine
concern there that is tracked, I try to assure them that they are not,
but I just want you to know that.

	MR. MADDUX:  I have been hearing that for as long as I have been with
OSHA, and I just want to make sure that I say as strongly as I can that
that is just not the case, that is not how it works, and we have no
interest in doing that.  We have plenty of real problems, and we have
certainly no shortage of people that we need to go and visit.  It is not
like we are trying to find people through some sort of phony mechanism.

	I would also point out that we have on our web page now, we have a
completely separate page devoted to recordkeeping, that has the FAQs and
that has various types of materials that people can use to help
themselves comply with these requirements, and we will certainly be
taking a look at those.

	Anytime you have some wonderful ideas, if you want to elaborate on any
of those in your written comments later on, that would be very, very
helpful, because it says this is in many ways a very hard to reach
audience for OSHA as I think it is for almost any government agency.

	So, any thoughts that you have about effective ways to get information
to this group of employers about what they need to do and to help them
just kind of do it with the least amount of difficulty would be greatly
appreciated.

	I have a couple of questions.  Do you know if your members use
computerized recordkeeping systems or electronic systems?

	MS. HARNED:  No, we really don't have good data on that, and that again
is a great question that I would think the SBREFA panel would be able to
really delve into more and understand.

	Again, we would encourage you to get a SBREFA panel on this, and also
make sure that when you do, you are looking at those employers that are
a little less sophisticated that would be required to comply with those,
you know, those that have 20 or fewer employees, because we just again
see that is the kind of analysis that needs to be done on the front end,
because again, we don't have the answer ourselves.

	I mean anecdotally I know I have walked into businesses and I see paper
records, but that doesn't mean that everybody is doing paper records.

	MR. MADDUX:  It is very difficult to assess and it is something
obviously that is sort of changing fairly rapidly over time.  I know,
for example, there are a lot of vendors that sell software to various
businesses to do just exactly this sort of thing, but I just have no way
of knowing how many people actually buy it and use it.  So, we are just
trying to ask people to find out.

	That is all I have got.  Sarah.

	MS. SHORTALL:  Does Bob have any?

	MR. MADDUX:  Bob?

	MR. BURT:  I have a few questions.  I am Bob Burt.  Let me welcome you
here.

	On the small business side, as Jim emphasized, this is an incremental
lesson, this is one column, one instruction, which you can read by
flipping over the form.

	We estimate it takes five minutes to read that instruction and make an
appropriate check mark.  The person already needs to have in front of
him a description of the injury or illness they are entering into the
log.

	Why do you think it will take more than five minutes?

	MS. HARNED:  Just knowing, again, this is something that I do
encourage, I really think it is SBREFA panel that is required here, and
I would say that in talking with our members, and what we see, it really
takes them a long time to even find out where do I get these
requirements.

	You know, the web site is not necessarily that easy for someone to use,
or the other tools may not be necessarily things that they have on hand,
because they are not just a compliance officer, they are often the
business owner themselves.

	I would also say with regard to this that if you look at certain
industries or types of businesses in particular, with this kind of
injury, you really are I think asking the small business owner to play
doctor, and just assessing whether or not did they really get this
tendinitis from the job or was it because Jerry plays tennis every
weekend.

	I mean I am concerned that they will struggle with that, and that will
take time because they are going to want to report it correctly, and so
I do think that that is an issue.

	MR. BURT:  You do realize that they already have to make that call,
whether it is work related or not.  There is nothing new here.

	MS. HARNED:  Right, but you are adding a new category, if I understand
it, of things that they are going to have to do, like putting things --

	MR. BURT:  No, we aren't, I am sorry, let me clarify.  We are saying
nothing is changed about what is reported.

	MS. HARNED:  Well, but they are going to have to designate it, right.

	MR. BURT:  Right, that's it.

	MS. HARNED:  And they are going to have to determine that this is an
MSD or they could get charged with a recordkeeping violation.  I mean
that is the concern, is are we checking on the right boxes, and I don't
think that is an assessment that somebody that doesn't have a lot of
expertise can do in a minute.  I just don't believe that.  I would like
to see a SBREFA panel on that.

	MR. BURT:  Now, let me ask, the SBREFA panel requirements are for
significant impact on a substantial number of small firms.  The average
firm affected by this rule records one MSV per year.  How expensive
would this have to be for you to consider it a significant economic
impact in the sense of SBREFA?

	MS. HARNED:  Well, again, I just think that in this instance, you know,
actually if I could, you know, when we went through this before, because
this really is a lot like ERGO was 10 years ago.  I just think it is in
OSHA's interest to do a SBREFA panel on that.

	I think there is a lot of confusion around this. I think that will get
information that can only help you, and I just -- I personally don't
understand why, especially when you are dealing with designating
something that can occur off the job and be aggravated on the job, I
just don't understand why we can't do a SBREFA panel on this to get it
right going forward.

	For me, this one screams for a SBREFA panel.  That is all I have to
say. I just do not believe that the estimates you have ring true for our
members.

	MR. BURT:  Okay.  Let me again thank you for coming here today.  Any
help you can give us, problems with what we have written, problems you
would anticipate with the definition, things like that simply the
process of people, small businesses even realizing they need a new Form
300 to enter things into, any comments along that line would be very
helpful.

	MS. HARNED:  Okay.  Yes, definitely.

	MS. SHORTALL:  I also have a few questions to ask you, too, and thank
you, first of all, for coming here this afternoon to give your
presentation.

	Does NIFB do training for its members on understanding new OSHA rules,
such as recordkeeping?

	MS. HARNED:  Actually, I ran our legal center, and we try to be very
aggressive in helping our members understand what the laws are that
apply to them and the regulations, so, yes, I would definitely -- I mean
this is the type of thing that we would do training on.  We use
webinars, we use advisory materials that are put on line.  We try all
different manners of ways to communicate exactly the sort of things to
our members when new regulations come out that affect us.

	MS. SHORTALL:  So, when OSHA published its revised Recordkeeping rule
in 2001, NFIB did offer training to all of its members on the rule?

	MS. HARNED:  Well, we were new at that point. The legal center has been
around since March of 2000.  I do know that we published advisory
materials that touch on that.  Did we do a specific training on OSHA? 
That was pre-me, but I don't believe so.

	That is something that as we have gotten older at the legal center, we
have worked to become ourselves more sophisticated in helping with these
things where we know that the small business center is not going to have
its clients --

	MS. SHORTALL:  Do you offer periodic training on certain key areas in
OSHA like recordkeeping, so every two or three years you offer a new
training webinar to your members about the Recordkeeping regulation?

	MS. HARNED:  To date, we have not actually done one on OSHA
recordkeeping.  That is a good suggestion, though.  This type of format,
the webinars is relatively new for us.  I guess my point is we are
trying, and we have limited resources, too, but that is definitely a
void that we see, that we can help fill for them, so that is actually a
great suggestion for us, because like I said, the OSHA 300 logs are
definitely something that we touched on through different types of
advisory materials, whether it is a fax sheet or a more comprehensive
Federal handbook, and we also have a guide to OSHA infection, but as far
as interactive training, that is a great idea.

	Now, I should also tell you they are busy running their business, so
it's not like we are anywhere close to 100 percent participation on
these things, but it is definitely something where we would -- you know,
that is a great suggestion as to something we could be doing now, and
then this, to me, has always put it up as the kind of example of
something going forward.

	MS. SHORTALL:  Do you ask your members what do you need training in?

	MS. HARNED:  Yes.

	MS. SHORTALL:  Have you had any big demand from your members I have got
to get OSHA recordkeeping training because even though the rule has been
in effect for a number of years, I don't get it, and I can't record?

	MS. HARNED:  Not that I am recalling, but I would have to go back. 
Actually, I would need to go back and look at that, because we solicit
in different ways, and I just feel like I am not able to answer that at
the moment.

	MS. SHORTALL:  Do you have any members, groups of members are coming to
you and saying I don't understand how to figure out if an injury
occurred at work or was aggravated by work, tell me what to do?

	MS. HARNED:  Again, I would want to come back and look at our logs, but
I definitely know we do have a call-in number ourselves, and I know that
we have gotten a number of calls from OSHA, an OSHA-related call.  I
have confusion there.  I am confident that that confusion exists.  I
just can't speak authoritatively without reviewing those logs.

	MS. SHORTALL:  Would you say generally that your members, after eight
years, have generally understood the Recordkeeping rule?

	MS. HARNED:  Again, you know, I go back to the fact that we need a
SBREFA panel, because I don't feel like I can answer that question even
with going back to more research.  I feel like that is what SBREFA is so
great at doing this, taking this up, and figuring out do we have an
issue here.

	I mean it could come back and there is not an issue, but I can't say
that authoritatively.

	MS. SHORTALL:  Could you tell me a little bit about your membership?  I
mean what percentage of your membership would be employers with 10 and
fewer employees?

	MS. HARNED:  I think we are about -- it is definitely our average
member, I would say probably 60 or 70 percent.  Eighty percent have 20
or fewer, let's put it that way.  I am fairly confident on that number.

	It is only 20 percent that you are going to see are going to have 20 or
more, and then start getting into the category where they are more
likely to have -- out of 350,000, that is only 70,000 members.

	MS. SHORTALL:  So, that remaining 20 percent, what would you say the
average employment size is for that group?

	MS. HARNED:  I will have to get back to you on that.

	MS. SHORTALL:  That would be really helpful, so we could understand
your use of that.

	Small businesses are concerned that they may not be marking the
recordkeeping forms correctly.  Are they currently over-reporting
injuries and illnesses now because of that fear?

	MS. HARNED:  Again, I really think we need to have a SBREFA panel on
this.  I think this is again an example of something you would learn
from that.

	Anecdotally, you know, anecdotally, I don't even know that I felt
confident answering that question.  I know that our members tend to err
on the side of caution, so I would not be surprised at all to learn that
they are over-reporting.

	Just myself, since I have been in this job, getting familiar with the
recordkeeping requirements, you know, it is easy to get tripped up under
the current rules.  I mean if somebody goes for an MRI, oh, my goodness,
isn't that terrible, I am going to put that on my log.  Well, that's not
treatment, that's diagnostic.

	I mean I could easily see a small business center, who is going to use
common sense, reporting things that may not otherwise need to be
reported.

	MS. SHORTALL:  This morning the representative from AIHA suggested it
would be helpful if OSHA provided some guidance as to some of the risk
factors that might be associated with musculoskeletal disorders
including that information as guidance or somewhere.

	Would you find that information helpful to small businesses, too?

	MS. HARNED:  Well, yes, definitely, I mean anything that you can
provide that is going to help break it down for them in a more easy to
understand way, they are going to welcome.  I really do again think that
this whole discussion, you know, points out the fact that more research
needs to be done on exactly how this is going to impact small business.

	I just don't think even we have the answers at NFIB for the numbers
that we represent.

	MS. SHORTALL:  Thank you very much for coming this afternoon.  I have a
request as you are preparing your material to come in, we welcome not
only hearing directly from NIFB, but if any of your members would like
to submit comments between now and March 30th, we would welcome that.

	They can do as easy as just going on to regulations.gov, and sending us
something across the computer, and they could save their stamp.

	MS. HARNED:  Okay, great.

	MS. SHORTALL:  Thanks so much.

	MR. MADDUX:  I am going to suggest that we take a short 15-minute break
and then come back and wrap up the remaining speakers.

	[Break.]

	MR. MADDUX:  Let's see if we can get started up again.

	The next speaker will be Larry Halprin.  Whenever you are ready, Larry.

	MR. HALPRIN:  Thank you for sticking around for the afternoon matinee. 
The popcorn and concession is out in the hallway, courtesy of OSHA, of
course.

	Good afternoon.  My name is Larry Halprin.  I am a partner with the law
firm of Keller & Heckman in the Washington, D.C. office.  I am here
today on behalf of the National Association of Manufacturers, the U.S.
Chamber of Commerce, and some other organizations with shared interests.

	What we are providing you today is a preliminary response to this
proposal, which OSHA describes as a proposal to restore the MSD column
on the OSHA 300 Log.

	I will summarize the points we are going to make, briefly review the
statutory authority for OSHA's activity, and then elaborate on those
points.

	Before I jump into that, at the risk of repeating some things, I would
like to try to clarify a couple points.  For a case to be recordable,
there has to be injury.  An injury is basically defined as an abnormal
condition or disorder.

	If anybody can tell me what that means, I would like to hear it, but I
don't really have a good idea.  If you have a cut, maybe that's obvious
because there is a physical manifestation.

	When you have a symptom, if you are not the bionic man or the bionic
woman, there is nobody who has a perfect sense of wellness that I know
of every day.  I would love to be that person, but I have never met
them.

	So, then, the question is, okay, what is this abnormal condition.  The
reality seems to be that you go through the steps and say is the
condition work related, is it new versus some pre-existing condition,
and then you get to the general recording criteria.

	The recording criteria of whether something resulted in days away,
restricted duty transfer or medical treatment, in a sense become the
severity criteria that basically circle back and tell you whether you
had an injury in the first place, and that is a major problem with the
rule.

	The statute talks about recording significant injuries and illnesses. 
There is certainly language in there about days away, restricted duty. 
The problem is that the simplistic way through administrative
convenience of making this whole scheme work nicely is to say, well, you
have something other than perfection, maybe that is an injury.

	You have a decision as to whether you call it an injury or not, but you
take a risk that if you make the wrong call, you are going to be cited. 
Then, you go the next step and say, okay, maybe it's an injury.

	Is it work related?  Well, I don't know.  If it's an MSD, it is not
nearly as clear as just about any other injury you can find.  Cuts are
pretty clear.  Bruises are pretty clear, you see them.  If you have got
a broken bone, they are pretty clear.

	MSDs to me are in a category all by themselves. There is frequently no
objective diagnostic criteria to use, so you end up relying on
subjective reports from employees about their particular condition.

	So when the comment comes from OSHA that all we are asking you to do is
put a check on the case that you have already recorded, I think that is
incorrect.  There are cases that are currently recorded now, because it
looks like it might be an injury, it looks like it might be an MSD, and
in order to make a determination about whether it was pre-existing, or
new, or caused by something in the workplace, it will frequently take
consultation with an occupational physician at great cost. You have got
to send the employee out and have him examined.

	So rather than going to all those expenses of paying for these medical
professionals and having somebody off from work for various diagnostic
tests, there are going to be some employers who will simply, right now,
decide to record the case, and the sanction for that, unless there are a
lot of them, is not tremendous from an OSHA enforcement standpoint.

	On the other hand, it seems to us that the preamble to this rule, and
the general political environment, and the OSHA Listens Conference, and
everything else, suggests that there is going to be an intent to go out
after people with MSDs on their logs, and there is an NAP on OSHA
recordkeeping.

	You put all those things together and the employers who had been
saying, well, maybe it's a recordable case, but I don't want to invest
all that time and money in doctors and time away, is now going to say I
can't afford to do that anymore, I am going to be targeted for
enforcement, so now I am going to go spend the money for those cases.

	In addition to that, there are currently cases that you don't really
know whether there are injuries or not, so you say, okay, there is a NAM
settlement agreement with OSHA where OSHA basically said various parties
in the rulemaking have said we should have some sort of preventive
transfer restriction, some language to that effect.

	We decided not to do it, we got sued, we settled by agreeing to allow
for that particular type of restriction to be used, and now, in a press
release in a preamble, we are saying all we are changing is the column,
but when you look in the eighth page of the preamble, you find out they
are actually planning on revoking that interpretation after eight years.

	So, we are not talking about suddenly an incremental risk, we are
talking about cases that have not now been legitimately not recorded,
because somebody made a determination that they weren't an injury, or if
they were, that they weren't serious enough, and they fell within
whatever you want to call that interpretation or exemption, and OSHA is
now saying, well, we are going to pull that exemption, at least it is
proposed to do that.

	So, the Agency hasn't been straightforward with us, for the people that
are immersed in these rules and understand them, they can pull out from
a buried discussion that OSHA is planning on changing a rule, but for
most of the public, that goes totally unnoticed.

	If the rule is changed, now we have a whole slew of cases that either
weren't treated as injuries before or were treated as minor injuries
that didn't require recording, and now there is going to have to be a
determination do we want to take the position they are not injuries, or
do we want to take the position they are injuries, but they are minor
and they are not supposed to be recorded even though we have got
language from OSHA that seems to be taking away the ability to do that.

	So, when you say is this an incremental cost of checking a column, no,
it is not, and if you ask somebody how they are going to pay for this
and what it is going to cost, it is an impossible determination because
you are in  a circle.  If you don't know what cases are going to be
recordable, because you don't know what the rule is going to say, then,
it is impossible to determine the cost.

	Now, with that introduction, I will skip back to what I was going to
say before that came up.

	In our view, the proposed rule would improperly cause employers to
record injuries that aren't significant, and in some cases, have no
meaningful relationship to the workplace.

	The definition of the term MSD is both over-broad and so vague as to be
incomprehensible.  You might say the definition seems to be clear, but
by the time you throw in subjective symptoms, which basically modifies
the definition, you end up with something that is incomprehensible and
basically seems to treat everything short of perfection as an injury.

	The use of the proposed definition of MSD with the inclusion of these
subjective symptoms is going to produce materially inaccurate records,
misleading records, and won't provide the type of quick glance value
that supposedly is going to be provided by having a check.

	The proposed rule is going to require employers to make determinations
that go well beyond their abilities.  I am talking about whether a
condition is work related, whether it is new, whether it's an injury,
whether there is a pre-existing condition.

	So, either the employer is going to have to learn how to do this, or
they are going to be forced at enormous cost to send every potential MSD
case to a qualified medical professional to assist in making the
determination in the hope that they will be able to make the
determination, recognizing that many medical professionals will be
unable to make those determinations.

	So, the practical effect is the employer is going to be put in the
impossible position of recording the case and classifying is it MSD, or
making immediate and expensive, and extensive inquiries in employee's
medical history, and I am not talking solely about their work-related
history.

	Anybody who would try to evaluate a medical case would look at an
employee's entire history, and then the question is how the employer
would have access to all the medical records, there are privacy issues
involved, in order to make that determination.

	In addition to, I believe misleading the public about the proposal in
terms of the change in the recording criteria for restricted duty cases,
as I mentioned earlier, OSHA appears to be proposing a change in the
definition of MSDs, that would classify all of them as illnesses rather
than injuries, as was stated in the final OSHA program rule.

	I will submit some pages to OSHA, but it is basically in 65 Federal
Register 68270 to 72.  There is an extensive discussion about the fact
that these cases are injuries.

	So, finally, in light of all these changes that would be affected by
this proposal, the measures that would be required to properly implement
it, we believe it is clear that OSHA's estimate of the cost of
compliance underestimates the real cost by orders of magnitude.

	We agree with NIFB that OSHA's certification, the rule would not have a
significant impact on small business, there is no factual support.

	Now, believe it or not, that was just a summary of what we had to say. 
I will summarize the statutory provisions.

	Basically, Section 8C2 and 24A and AC1 of the Act are the relevant
provisions.  They authorize the Secretary to maintain accurate records,
not just records, of work-related deaths, injuries, and illnesses other
than minor injuries, and that means they have to be disabling, serious,
or significant.

	We do not think that minor musculoskeletal discomfort falls into that
category.  If OSHA has some concern that some cases are being pushed
into that category, then, it is up to OSHA to redefine in a better way
what minor musculoskeletal discomfort is, describe an algorithm,
describe a scale, not simply do away with it to get rid of a problem,
and then create the recording of what I think Steve Newell of ORC would
call silly cases that don't have any credibility on a log.

	Read together in accordance with the applicable legal principles for
clarity, we believe the reference provisions of the OSH Act, direct OSHA
to adopt reasonably clear injury and illness recordkeeping rules that
will result in the creation of accurate records of significant
work-related injuries and illnesses, which will assist OSHA employers
and employees in furthering the objectives of the OSH Act. 
Unfortunately, we believe this proposal fails to meet the statutory
requirement and is outside the authority granted to OSHA for these
purposes.

	We believe the proposal will result in employers recording cases of
minor subjective symptoms rather than significant injuries and
conditions that do not have an adequate nexus to the workplace.

	In addition, employers will be forced to spend inordinate resources in
an attempt to comply with this rule, and the final product will be
inaccurate records of little value.

	Now, the shortcomings in the proposed rule are due to many factors.  We
discussed some of them over 10 years ago.  There is certainly still an
inadequate understanding as to the causal factors for conditions
referred to as MSDs.

	Studies published by the Cochrane Collaboration, Stanley Bigos, et al.,
since 2000, have raised questions about the continued reliance on
biomechanical theory of MSD causation and the remedies based on that
particular theory.

	We note that OSHA has not made any effort to suggest that its analysis
to science related to causation has been in any way updated over the
last 10 years, and it seems as though OSHA has assumed that the
scientists remained static over that period.

	Even a short bibliography review would show that there has been a
substantial amount of research in that area that underline at least many
of OSHA's 2000 ergonomic theories.

	The statute talks about recording significant injuries and illnesses. 
If the phrase significant is meant to be given any true meaning, the
rule that defines cases as recordable must distinguish between those
that are transient manifestations of discomfort and those that are
medically recognized as serious conditions.

	It appears that as a practical matter, every complaint of pain,
soreness, or discomfort that an employee would report to an employer
under this proposal, if accompanied by some concern that the employee
might not be able to perform all functions of the job, would cause the
case to be recordable, or if the employer took the conservative approach
and implemented a work restriction to prevent what we consider minor
musculoskeletal discomfort from becoming significant.

	OSHA's proposal would, in effect, remove the word significant from the
definition of recordable cases in Section 24 of the Act, and this is a
point again that was made by Steve Newell of ORC.

	To avoid erroneously recording a case that is not new, work-related, or
significant aggravation of pre-existing condition, the employer will be
required to develop sufficient medical expertise among supervisory and
human resources personnel to know when an employee would be capable to
continuing in a job and when activity would pose an unreasonable risk of
further injury.

	Alternatively,  the proposed rule would force employers, at enormous
cost, to send every potential MSD case to a qualified medical
professional to assist in making these determinations.

	Furthermore, when you send an employee to a clinic, typical nearby
clinic, they will rarely have access to the employee's full medical
file, and it is likely under those circumstances there will be many
erroneous determinations as to whether conditions are new, whether they
are actually injuries, and whether they are work related.

	We believe that OSHA recognizes that the etiology of MSDs is often
multi-factorial and it will often not be clear whether the precipitating
event occurred in the work environment or elsewhere, but the 2001
Recordkeeping rule placed employers in the impossible position of
balancing the privacy interests of the employee and his or her medical
records and the regulatory directive to discover whether the employee
has a recordable MSD.

	The adoption of this proposal will return employers to that impossible
choice.

	Before the 2001 rule took effect, the Secretary recognized that liberal
interpretation of the rule was likely to undermine the practice followed
by many employers in implementing proactive work restrictions or
transfers to prevent a condition that would be described as a minor
musculoskeletal discomfort from progressing to the severity of
reportable injury.

	We say undermine in the sense that the rule would have converted these
insignificant conditions to reportable cases.  That was one of the
factors that led NAM to file the suit against OSHA's Recordkeeping rule
in 2001.

	The suit was resolved and there was a settlement agreement between NAM
and the Secretary.  Under that settlement agreement, the Secretary
agreed to include the following interpretation in the compliance
directive for the rule:

	"The case is not recordable" -- I will leave out the sections -- "as a
restricted work case if the employee experiences minor musculoskeletal
discomfort, a health care professional determines that the employee is
fully able to perform all of his or her routine job functions, and the
employer assigns a work restriction to that employee of the purpose of
preventing a more serious condition from developing."

	The exemptions, safe harbor provision, whatever you would like to call
it, was designed to ensure that employers could continue to implement
truly preventive work reassignment modifications without the penalty of
having to record the case as a restricted duty case.

	The adoption of the provision reflected a sound public policy
determination by OSHA that favored encouraging proactive employer
measures likely to address in advance employee safety and health.

	As I mentioned, OSHA has incorrectly stated the proposed rule would not
change the currently applicable criteria if, as I understand it, the
proposal would do away with that particular interpretation.

	That interpretation in the NAM settlement agreement has been in place
for over eight years.  We believe the Agency is bound by it as part of
the regulatory text, and can only be changed through notice and comment
rulemaking, would adequately describe the change that is being proposed.

	OSHA has not done that.  The summary for this proposal does not mention
that.  The initial summary, pages 4728 and 4731 doesn't mention that. 
You have to look into some further explanation buried 8 pages back, and
then it says -- this is after, of course, OSHA has issued a press
release saying the only thing it is going to do is change the column,
the addition of a column.

	There is no mention of the fact that OSHA is proposing to change this
material provision of reportability until you get 8 pages into the
document, and then OSHA says, not that it is proposing a change to the
rule, but is planning on removing language from the compliance
directive.  I don't think that is the kind of public interest, turning
square corners disclosure that we would expect from the Agency.

	I am sorry I didn't make the OSHA Listens presentation the other day or
I would have said it then.

	Just to repeat, the January 28th OSHA press release says this rule does
not change existing requirements when and under what circumstances
employers must record musculoskeletal disorders.

	So, according to OSHA, it rejected suggestions during the rulemaking to
create this exception.  The Agency's rationale, which I believe is
circular, was that the concept wasn't relevant to the Recordkeeping rule
because it was vaguely defined, work-related injury or illness, then,
any subsequent transfer of restriction was recordable.

	Then, you get to the question, was there an injury, and you determine
whether there was an injury in the subjective case by looking at the
severity factors of whether there was a transfer or whether there was a
restriction of work.  Pretty circular to date.

	As you can understand, we don't find the rationale now offered by OSHA
in support of this proposed change the criteria for restricted duty
cases persuasive. The explanation is it has been made to avoid confusion
as to what is recordable.

	We see it as quite the opposite.  Employers currently understand what
minor musculoskeletal discomfort is.  Instead, it is not pain
manifestation of an injury of a type that a medical professional would
recognize, and by removing that language it appears that any reported
subjective symptom is now going to rise to the level of an injury or an
illness.

	OSHA offers a number of explanations as to why the MSD column would
provide valuable information to OSHA employers and employees.  OSHA
asserts that the MSD column would improve the quality of OSHA's national
statistics, and assist OSHA gaining an understanding of the number and
rate of MSDs as if MSDs were conditioned sufficiently in common
characteristics to logically place into a single grouping for purposes
of counting analysis and the development of interventions expected to
reduce their severity and frequency.

	Second, OSHA asserts the MSD column would assist the Agency in
targeting, inspection, outreach, guidance and enforcement efforts at
MSDs.

	Third, OSHA asserts that having the MSD column would assist employers
and employees in quickly identifying and tracking incidents of MSDs at
facilities.

	We believe all these points are based on a faulty premise.  MSDs are
not comparable to skin disorders or respiratory illnesses.  The etiology
of MSDs is far more diverse.

	As defined by OSHA, the term MSD refers to a broad spectrum of
disparate conditions that may adversely affect any tissue associated
with musculoskeletal system and otherwise have little in common.

	As the National Academy of Science determined, the etiology of MSDs
involves a complex combination of factors including physical factors,
genetic factors, obesity, and psychosocial factors among others.

	In other words, as I said, the grouping of MSDs into a category is an
artificial grouping of disparate disorders that have little in common.

	If all cases falling within this multitude of conditions, collectively
referred to as MSDs, are grouped into a single column, and the data is
collected for the annual BLS survey, the result is certainly likely to
be a projection by BLS of a relatively large, but we believe unreliable
set of numbers allegedly representing reportable MSDs.

	The numbers would be meaningless in the sense that they fail to provide
OSHA or other interested parties with the information needed to
determine the frequency, incident rate, causation, and means of
preventing any particular condition.

	OSHA also indicated the proposed rule would not change the currently
applicable criteria for reporting cases.  As I mentioned, and I won't go
into it again, in the fog of the confusion created by the proposal, it
appears that OSHA is attempting, without providing any notice or
soliciting any comment, to redefine all MSDs as illnesses rather than
injuries.

	As I mentioned, in adopting the ergonomics program standard, OSHA found
that the MSDs were all properly classified as injuries, classification
was consistent with the position taken by California's Occupational
Safety and Health Standards Board, and the California courts on
reviewing the repetitive stress injury regulation.

	However, OSHA's January 28th press release says U.S. Department of
Labor's OSHA proposes recordkeeping changes to improve illness data.

	Then, the term disorder, injury, and illness is used somewhat casually
through the document, but in about six strategic places, you see here
insertion of the word "illness" by itself.

	In our view, it would be highly inappropriate for OSHA to use this type
of a rulemaking with no public notice to try to effect that kind of an
important change in the characterization of MSDs.

	In talking about costs, I think you can tell from what we talked about,
this is not a situation of incremental costs, this is a situation of
going back and reexamining the way cases currently classified as MSDs
are classified, looking at a whole new category of cases which has been
treated as minor musculoskeletal discomforts and determining whether
they should now be recorded or not, and if not, getting the necessary
medical, legal, and technical support for determination that they don't
need to be recorded.

	Whether small businesses can afford those costs is questionable,
however, the costs will be enormous to go through that kind of a
process.

	Beyond extensive time and costs required to become familiar with the
regulation and implement it, employers will encounter the following
additional costs:

	Sending employees for medical evaluations to determine the nature and
severity of their conditions, the costs of any penalties OSHA poses due
to allegedly incorrect recordation, the costs of targeted inspections
and ensuing citations erroneously triggered by overstated total injury
or MSD rates because of overrecording, and the cost of challenging
adverse recordation determinations by OSHA.

	Finally, the adverse financial impact from the publication of
erroneously overstated and misleading total injury rates, MSD rates for
a particular facility, which are now available in OSHA's web site or
would be available under this particular approach for MSDs, as well as
other injuries, which will result in the loss of goodwill, potential
loss of government contracts, and whatever the effects are of OSHA's
announced use of shaming tactics to influence employers in their
markets.

	Clearly, OSHA did not consider all the relevant factors in certifying
the proposed rule would not have a significant impact on small business.

	For all these reasons, which we intend to address further in our
detailed comments, we believe it would be inappropriate for OSHA to
proceed with the proposed rule and it should be withdrawn.

	Thank you for the opportunity to make this presentation on behalf of
the National Association of Manufacturers, the U.S. Chamber of Commerce,
and related organizations.

	MR. MADDUX:  Thank you, Larry.

	I guess I would like to start out.  It sounds to me like you would have
us believe that the recording of MSDs is so impossible and so convoluted
as to make it almost an undoable course, and yet from what we have heard
today, it sounds like there are at least a million MSDs that are being
recorded in this country every year, right now.

	How is that employers are able to work through all those difficulties
without the entire economy collapsing?

	MR. HALPRIN:  There is a lot of doctors and lawyers out there.

	No, seriously, as I said, the question is in the current environment,
when it was just not targeting people for MSDs, there are some that are
willing to say okay, I won't invest the time and resources it would take
to sort all this out.

	There are some cases that will probably be the obvious, I am not going
to say they are all impossible to determine, but there are many that
will be difficult to determine.

	There will be many with various causes, outside jobs, psychosocial
factors, all kinds of other factors that would not normally be
adequately considered, and won't be adequately considered by the
organizations that can't afford to.

	They will simply record the cases and then we will have an
over-recording problem, and people will look at this agglomeration of
unrelated conditions and say we need to do something about it.

	MR. BURT:  I ask a follow up on a specific to that.  For as long as I
have been at OSHA, which is a pretty long time, low back pain has been a
major recorded injury or an illness.

	So it would seem that people are including quite routinely something
which is in the phrase used here, subjective, purely pain.  Yet, you are
saying this is new. How do you explain that people have been recording
this for decades?

	MR. HALPRIN:  I am not sure what I said was new. I don't want to put
anybody on the spot by taking a poll. Probably everybody in this room
over whatever age has suffered some back pain, and whether it is on the
OSHA log for this building or not, I don't know, but back pain is
something that is statistically, I believe most people in their life
experience, and I don't think except in a traumatic event, most people
realize whether it is through work or something else, and people make
their best guess.

	MR. BURT:  My question was more directed to you, you made quite a point
that there is something new about saying you have to record things that
are pain only. People seem to have been doing it.

	MR. HALPRIN:  What I am saying is the proposal, in my mind, changes the
recording criteria at least for restricted duty cases, and if it were to
be adopted as written, it would include all the silly cases, as Steve
Newell, whatever word he used, it might not have been silly, something
with an "s", didn't think it would be appropriately recordable.

	So, all I am saying is there are people now who look at the criteria,
take OSHA at its word that it really is supposed to be about significant
cases, and make a determination that a case is not an injury, or if it's
somehow an injury, that it doesn't come up to the level of beyond minor
musculoskeletal discomfort, and all those cases under this proposal
could be recordable.

	I can't tell, and I am not sure we will ever know, if it was written
like this until cases were litigated, which would be unfortunate, but
the language is so vague, this area has been vague for a long time, I
don't see clarity coming out of this proposal.  I see confusion.

	MR. BURT:  Thank you.  That is all I have right now.

	MR. MADDUX:  As part of your comments, you seem to provide sort of a
direction, potential direction in terms of trying to help provide
additional clarity, that the Agency should provide additional clarity
around this minor discomfort, MSD discomfort kind of issue.

	Do you have any practical suggestions for doing that?

	MR. HALPRIN:  Well, I do in a sense, but it is a little bit unusual. 
There is a woman I met out in the audience who was explaining what she
does, I am not sure she would want to come up and talk about it, but she
would probably be better than I would to talk about it, but she was
describing that they use algorithms that I assume have some medical
support to make a determination about whether, on a scale from whatever,
zero to whatever number you want to use -- and I am throwing this out on
my own -- cases are properly treated as musculoskeletal discomfort, or
they are treated as something that would be considered an injury
requiring some sort of medical restriction.

	Using that algorithm, they identify cases that are considered minor
musculoskeletal discomfort, they put people in some other position where
they won't be exposed or maybe they will be some other way of avoiding
them being exposed to particular conditions until they have recovered or
their muscles hardened, do whatever is necessary, and that is a practice
that is followed around the country.  I believe it needs to be
preserved.

	We would certainly be happy to talk to people and work with some people
and come up with some materials, but I cannot see if that provision is
dropped, or that interpretation is dropped, that we won't be going
backwards and recording cases that have no purpose on the log.

	MR. MADDUX:  The next question really has to do with transparency.  It
seems to me that you are really sort of casting a bit of aspersion on
us, that we are not being transparent in our discussion about the
interpretation on restricted work, and yet it seems to me that this is
much more transparent process than the settlement agreement that created
the exception to begin with.

	Why isn't this transparent enough to do it in a Federal Register notice
where the entire public gets a chance to comment?

	MR. HALPRIN:  I believe that summary up front should explain what is
being proposed, and a press release should not say the only thing we are
doing is -- OSHA is doing -- is restoring an MSD column when that is not
true. That is just incomplete, it is an omission, and we have a
situation where the economy appears to be recovering, but it has got
some problems.

	There are not people staffed all over the place to read Federal
Register notices coming out in reams from one agency or another, and
someone could simply read that summary and say, okay, all they are going
to do is add a column, not know anything more about it, and ignore it,
and that wouldn't be fair.

	This isn't directed at anybody personally.  I just simply think the
Government could be a little more forthcoming and explain what it is
doing.  Part of the problem -- and there is probably some legal reasons
for it, which I don't want to speculate on -- this is the way it was
done.

	I am expressing a view that I don't think it was done properly, and
that the proper thing to do would have been to put a Federal Register
notice out explaining these changes, and since it wasn't done that way,
the proper thing now to do would be put another Federal Register notice
out that actually does highlight those changes and give people an
opportunity to comment on it.

	MR. MADDUX:  It seems like we have had plenty of opportunity today.

	MR. HALPRIN:  There are some people that read what is going on and try
to do their best to pay attention.

	MR. MADDUX:  Yes, I understand.

	MS. SHORTALL:  I have a few questions for you, Mr. Halprin.  When
employers are asked to identify whether skin disorders, respiratory
diseases, or hearing loss are a work-related condition, are they being
asked to go beyond their competence?

	MR. HALPRIN:  Not nearly to the same extent as MSDs, which commonly
occur in every walk of life.  I don't know how many people other than
people with some unusual conditions incur respiratory ailments outside
of work, noise outside of work.  It depends on whether you listen to
rock, use your lawn mower, snow blower without ear plugs.

	I mean I think those conditions that you are otherwise talking about
are much more likely to be related to work and much more easily
determined to be related to work, and much more likely to be from a
single cause rather than multiple causes.

	MS. SHORTALL:  So, are you saying that skin disorders, respiratory
diseases, and hearing loss are not common ailments in life, and only
occur in the workplace?

	MR. HALPRIN:  No, I am saying that my experience is most of them occur
in the workplace, and to the extent that they don't, they are much more
easily identified as the cause.

	MS. SHORTALL:  So, could you explain to me, for example, how does the
employer determine whether the hearing loss is the result of the
employee's experience in the workplace versus going to rock concerts
over the weekend, or being a fan of NASCAR?

	MR. HALPRIN:  Well, there is two things.  The number of MSD lost
workday cases was projected at, what was it, a million?

	MS. SHORTALL:  No, 335,000 last year.  Those are ones with days away
from work.  We don't know how many there were all together.

	MR. HALPRIN:  Okay.  The number of ear loss cases, as I understand it,
are far smaller.  There is a fairly rigorous OSHA hearing conservation
program that requires anybody who is exposed at 85 decibels or higher
over an 8-hour time-weighted average, to get an annual audiogram.  There
is diagnostics for that.

	Then, you look and see what the employee was exposed to at work, what
decibel levels, what frequency, and usually, some health professional
makes a determination as to whether it is work related or not.

	MS. SHORTALL:  So, what you are saying, then, is that even with many
other injuries or conditions, it is beyond the competence of employers,
and they are going to health care providers to have them assist and
giving advice and consultation, and whether something might be work
related?

	MR. HALPRIN:  That is true.

	MS. SHORTALL:  Okay.  You mentioned that OSHA or that OSHA is only
authorized to collect data on significant injuries and illnesses.

	How would you classify numbness in the hands and feet, and burning in
the hands and feet, is that significant, or is that something less than
significant?

	MR. HALPRIN:  I don't pretend to be a medical professional, so I don't
have an opinion on that.

	MS. SHORTALL:  I see.  How would you classify a rash?

	MR. HALPRIN:  I would say tingling certainly doesn't fall into that
category.  I get is sitting in some of these uncomfortable chairs.

	MS. SHORTALL:  I asked you about burning and numbness in the hands and
feet.

	MR. HALPRIN:  Well, tingling was one of the items in the Federal
Register.  I thought I would throw that in.

	MS. SHORTALL:  Okay.  On respiratory -- let's look at skin disorders
this time.

	MR. HALPRIN:  Which are not the subject of the rulemaking.

	MS. SHORTALL:  How does the employer know, or you are saying that the
employer, unlike MSD, the employer can look at a skin disease and decide
on the spot without having to go to a medical doctor or send that
employee to a medical doctor, that this is significant?

	How are they able to do that, but they can't talk with an employee who
has pain and numbness and determine that that is significant?

	I mean what is the difference, why is it looking at a person who, let's
say you have contact dermatitis, and you don't even see it, it doesn't
come out, but you are itching, itching, itching, how does an employer
determine both that that is significant, and that is work related, and
is able to do that, and yet is confounded by trying to do the same when
an employee presents with pain, numbness, or burning?

	MR. HALPRIN:  I am trying, being respectful, I don't know whether you
can get contact dermatitis, and not have some rash develop, to tell you
the truth, I don't think I would want to speculate on a hypothetical
that I don't know if it is real.

	The reality of it is from what I have seen, the causal factors for MSDs
are diverse and very difficult to tell, and some of them, many of them
are psychosocial factors.  I don't know of any other condition that has
those kinds of causal factors involved, the most complicated that I have
experienced.

	MS. SHORTALL:  So, you are saying that skin disorders don't have
multi-factors that could determine, or that respiratory diseases are all
based on one factor that determines whether or not you develop the
respiratory disease or the skin condition?

	MR. HALPRIN:  I know that OSHA has never proposed a rulemaking to
address skin disorders or respiratory ailments, and so there must be
substantially less problem identifying them or controversy in dealing
with them.

	MS. SHORTALL:  Or maybe they haven't done a single rule because they
are multi-factorial and they deal with them instance by instance, and
specific standards like, well, silica that is coming up, benzene, lead.

	I mean could that be the basis for why they don't have a single skin
disorder, because, in fact, it isn't a single factor, but, in fact, it
is multi-factorial?

	MR. HALPRIN:  No, I think the problem is that OSHA has a challenge in
trying to establish permissible exposure limits, and deals with
chemicals one at a time.

	MS. SHORTALL:  Clarify for me, if I am wrong, are you suggesting that
we could only have separate columns on the OSHA 300 Form for diseases? 
We couldn't, if we wanted to, put a separate column for falls or
lacerations if we so wanted to do that?

	Are you suggesting that in order to have a separate column, it must be
an illness?

	MR. HALPRIN:  No, I never suggested it had to be an illness.

	MS. SHORTALL:  Are you suggesting that if OSHA doesn't put everything
that is in a notice in its summary that it is defective and illegal?

	MR. HALPRIN:  When the summary is otherwise misleading by the omission,
yes.  If you say you are going to develop a comprehensive program on
something, and you say that up front, and people know they are going to
have to look a little further back to get the details.  When the press
release says the sole action is going to be a change of column, and
nothing else is going to happen, and the summary says the same thing in
two different locations, then, I think the notice is defective.

	MS. SHORTALL:  So, anytime OSHA fails to put something in a summary, it
is a defective -- something that is included in our proposed rule, it is
defective.

	MR. HALPRIN:  No, that is not what I said.  What I said is when the
statement in the summary is very clear that this is all we are doing,
and in a press release that this is all we are doing, then, and it is
not changing as specifically says in the press release, we are not
changing the recording criteria, and that is an official statement from
either OSHA or the Secretary, then, I think it's misleading.

	MS. SHORTALL:  Could you point out to me in the summary of the proposed
rule where you say we are not doing anything other than that?

	MR. HALPRIN:  I didn't bring the press release, but I am sure we can
get a copy, and I will be happy to submit --

	MS. SHORTALL:  No, I am talking about the summary, the legal document
that we are required to publish a notice of comment.

	MR. HALPRIN:  Are you suggesting that the Secretary can put whatever
she wants in a press release, and not be bound by it?

	MS. SHORTALL:  Is a press release a legal document?

	MR. HALPRIN:  Yes.

	MS. SHORTALL:  I see.  Okay.  I guess we will have to agree to disagree
on that.

	I would also really appreciate any suggestions you might have on trying
to develop outreach materials that OSHA might do that would help make a
rule, a final rule, as understandable and as reachable as possible for
any employer who might be confused by the proposed rule.

	You know, sometimes regulation is an art, as well as a legal
proceeding, and you think everyone agrees on the same word meaning the
same thing, and it doesn't always quite, and we always could use some
specific suggestions on how we could do the best outreach possible, so
that diverse groups of people with diverse understandings of what a term
mean might best understand what would be required under any OSHA
standard.

	I really appreciate your coming here today, Larry, and look forward to
see your full comments in the proposed -- I mean in the record by the
30th of March, and, likewise, I mean we have people who aren't here
today, who you might be in contact with, and we welcome having their
comments come in, too.

	MR. HALPRIN:  Thank you.

	MR. MADDUX:  Thanks, Larry.

	That is the last of our schedules speakers.  We do have a little bit of
time left.  I think we have stayed ahead of schedule.

	Are there any persons here who would like to sort of just make an
informal statement, who did not -- please come up.  If you would state
your name and your affiliation, so that we can be clear in the record,
that would be helpful.

	MS. SHORTALL:  Please sit down.

	MS. DENMAN:  Thank you very much for the opportunity to speak.  I am
previously known as the woman from the audience, but my name is Sheila
Denman.

	MS. SHORTALL:  Would you mind spelling your last name for the record,
please?  Thank you.

	MS. DENMAN:  Sure.  It's D-E-N-M-A-N.  I am the Chief Operating Officer
for an organization based out of Indianapolis, that works on injury
prevention programs for employers of all sizes.

	I came here today on behalf of our employers that I am working with
just to listen firsthand to what would happen today, but I felt
compelled to come forward and speak, having heard some of the
discussion.

	As training, my background is a physical therapist, and while I
clinically have been trained in the treatment of injuries, I have spent
the last 20 years in working with employers on injury intervention and
prevention.

	The reason I would like to talk with you is to encourage you to relook
at eliminating the language as just referred to as allowing an employer
to apply restrictions or limitations to a worker's activities to
eliminate or to lessen the degree or aggravation of discomfort.

	As a practitioner, I can tell you there is a significant difference
between minor discomfort and pain, and there are algorithms that can be
developed, and there are methods for establishing a difference between
discomfort and pain.

	As our work force continues to age, I can also tell you that we are
more and more going to be dealing with people with minor discomfort.

	In the cases with the employers that I work with, what we have designed
is a program that really revolves around four principles.

	That is, number one, encouraging early reporting of minor discomfort. 
I want every individual out in a work force that has any level of
discomfort to come forward and report that.

	I want to hear about it, I want to know about it, and then I want to
examine their workplace, because there is probably something that they
are doing in their workplace that is causing or potentially could cause
aggravation of the injury or the discomfort.

	If they do not come forward and bring that information to me, and I
don't have in my tool bags the ability to alter their job for that day
or for that week, then, we are going to be facing aggravation of those
injuries, and they will become significant musculoskeletal injuries that
will result in the log.

	So, really, my request to you is to reconsider taking that language out
and to allow employers to realize there is a difference between minor
discomfort and pain, there is a significant difference.

	I would suggest that some 70 percent of the people here today have some
level of minor discomfort, that if they were not just sitting in a chair
today, and they were doing manual labor, there would be a high risk of
aggravation of that discomfort.

	I think we can creatively work with our employers to find ways to work
around that discomfort to avoid injuries.  If we take that away from
them, they will only be looking at the opportunity of applying
restrictions as an indicator for an OSHA recordable.

	So, if they change the job requirements of that individual, it will
qualify as a restriction, thereby, will qualify as a recordable.

	I would also, while this has not been a scope of discussion today,
would like you to reconsider the definition of exercise.  It has been
taken out of a qualifier for First Aid because exercise was defined as
amounting to self-administration of physical therapy.

	Exercise is something employers are doing across the board,
preventative exercises to allow employees to prepare for work.  Those
may be stretches, those may be other exercises for work hardening to
prevent injuries from occurring.

	Today, the way First Aid is written in the OSHA standards, we are not
allowed to issue exercises to employees to lessen the discomfort and the
injury.  So, I would encourage, and I understand that is not the scope
of today's talk, but would encourage you to re-examine that definition
of exercise.

	MR. MADDUX:  Is that all?

	MS. DENMAN:  Yes, thank you.

	MR. MADDUX:  Are you planning on submitting written comments to this
rulemaking?

	MS. DENMAN:  I will, yes.

	MR. MADDUX:  I think that in particular, if we can get some idea of how
you go through this determination of determining this difference between
minor discomfort and pain, that would probably be very, very helpful.

	MS. DENMAN:  Absolutely.

	MR. MADDUX:  The second thing I would like to ask, on this exercise
definition, I am not sure, I would have to go back and refresh my memory
on this, but are you saying that you are changing your course of medical
treatment because it would result in a recordable injury?

	MS. DENMAN:  With the handling of minor discomfort under the definition
of First Aid, we are not issuing exercises because that would be outside
the scope of First Aid.  I believe there is room under First Aid
treatment for exercises to be administered and to alleviate minor
discomfort.

	MR. MADDUX:  Thank you.

	MS. SHORTALL:  I have a couple questions.  I think it is very
intriguing what you were talking about, with the algorithms and that.

	I was wondering if you could tell me either in your algorithms or
through your general practice with working with lots of patients over a
number of years, where does, or can you give anything, where does minor
discomfort start and end, and discomfort start and end, and pain start
and end?

	Do your algorithms answer that question?

	MS. DENMAN:  We try to give practical examples to the employers, and
again we are dealing with employers of 5,000 employees all the way down
to 50.  What we tell the workers is any level of discomfort that you
have, anything that feels unusual, we want you to report it.

	We are going to take a look at how you do your job and how maybe we
might eliminate or how the job may be influencing that level of
discomfort.

	Now, once that level of discomfort reaches a point where they have to
change the way they perform their job substantially, either in frequency
or duration, then, we are looking at a more critical situation here that
may result in treatment beyond First Aid.

	But really the key question for us goes back to how can the report of
discomfort be treated.  If it can be treated under First Aid, which we
are going to do no more than two weeks, because that is a reasonable
time to see the resolution of minor discomfort, if it is going to take
longer than that, or if it requires treatment beyond First Aid, then, we
are going to be reporting to an upper level of health care professional,
a physician referral, and probably will become a recordable at that
point.

	MS. SHORTALL:  Even in your discussion here, you have been sometimes
saying discomfort and sometimes saying minor discomfort, does it all get
sort of smooshed together in practice, because, you know, I am wondering
if there really is -- I really think there may be a difference between
what is minor discomfort and discomfort.

	The current compliance instruction only deals with the issue of minor
discomfort.

	MS. DENMAN:  You know, I can appreciate that and I think different
people will use different words.  I think it goes to asking more
questions and saying tell me about what you are feeling, tell me how it
influences the way you move and the way you perform activities.

	Tell me what influence it has on your activities of daily living.  If
it is a significant impact and that they have to change those activities
of daily living, then, I think it is beyond minor discomfort.

	The whole goal of at least in my belief what is reality for employers
today, is that if we don't change the way employers are dealing with
injuries, and that is going to traditional occupational medicine model,
businesses will go out of business, and so what we have to do is we have
to find a way to encourage employees to report minor discomfort.

	I am talking about the twinge in your back, the tingling or the
numbness.  Absolutely, I want to hear that because some of that is only
related to positions and postures, and can be alleviated with simple
instructions.

	MS. SHORTALL:  Are you finding that through your practice that
employers have been successful in identifying MSD, reports of MSDs in
the workplace, whether they are work related or not?

	MS. DENMAN:  I think they have, particularly the forward thinking
employers, because they are indications that there are potential
problems in the workplace.

	MS. SHORTALL:  Okay.  Is asking them to figure out whether they are
work related, is that outside their level of competence?

	MS. DENMAN:  The employers that we represent asked us to be here today,
not because creating that column in log is an issue, their concern
solely was in taking that definition out of the language.  So, do I
think it is beyond their scope?  Absolutely not.

	MS. SHORTALL:  Okay.  Are the employers you deal with pretty actively
using OSHA 300 logs to track and analyze their problems in the
workplace?

	MS. DENMAN:  They are, and I think that that is a good indication of
where there may be significant concerns within the workplace.

	MS. SHORTALL:  Do they also use the summary data on the OSHA 300 Log
for anything?

	MS. DENMAN:  Not that I am aware of, yes nor no.

	MS. SHORTALL:  The fact that a number of injuries and illnesses that
are reported, as well as MSDs, may be evidenced simply by subjective
symptoms.

	Are employers still able to figure out which ones are illnesses and
injuries and which ones are work related?

	MS. DENMAN:  I think that saying yes or no would be a general statement
obviously, and way too broad.  I think employers that have some level of
medical background or someone on their team that has some medical
knowledge, absolutely yes.  I think others struggle with it, but I think
there are other answers, such as providing some in-house help, some
assistance in defining those.

	MS. SHORTALL:  And the employers that you work with, have they moved to
electronic recordkeeping?

	MS. DENMAN:  I don't know.

	MS. SHORTALL:  If you could find that out, that would be really great
to hear.

	I guess just finally, I am hoping you had a chance to read the whole
proposal --

	MS. DENMAN:  I did.

	MS. SHORTALL:  -- so, you could see the definition of MSD that we put
in there.

	One person today has suggested we should also provide guidance on risk
factors.  Would that help the type of employers that you work with
understand more easily whether MSD has occurred and whether it is work
related?

	MS. DENMAN:  My concern with the guidance and identifying the risk
factors is that 99 percent of the jobs in a manual labor work force
would fall underneath the high risk factor.

	MS. SHORTALL:  Okay.

	MS. DENMAN:  Awkward postures, vibration, repetitive activities, that
is what is called work, and as the very nature then results in high risk
for injury.

	MS. SHORTALL:  Okay.

	MS. DENMAN:  I think the reality of it is that employers already
recognize that those are risk factors, they don't need that guidance. 
Again, that is at least with experience of the work that I do.

	MS. SHORTALL:  Currently, employers are required to record MSDs, they
just don't have to put it in that column.  Employers have been able to
figure that out and keep those records over the last eight years?

	MS. DENMAN:  I have not seen any difficulty with that.  Again, the
concern with the employers that I am working with is not the column,
that is not the issue.

	We like to use a term called protective limitations.  They would like
to be able to continue to apply protective limitations to their
employees to help protect them from aggravating minor discomfort and
creating a major injury.

	MS. SHORTALL:  First of all, thank you very much for coming today and
getting up to let us grill you the last person of the day.

	I have one request.  When you go back to working with your companies
and putting together your final comments, my request would be to try to
encourage the others to send in any comments they might have by the 30th
of March.

	It is very easy.  They just have to go to regulations.gov and hit the
Comment button.  They can do it right from their computer.

	MS. DENMAN:  I am quite confident they will.

	MS. SHORTALL:  Thanks so much.

	MS. DENMAN:  Thank you.

	MR. MADDUX:  Do we have anybody else who would like to have any
comments today?

	MR. LeGRANDE:  I am Dave LeGrande with the Communication Workers of
America.

	One of the previous speakers mentioned the term "psychosocial," in his
reference to MSDs.  As I understand it, in the proposed regulation,
there is no reference to psychosocial whatsoever, what OSHA is looking
for are physical cases of injury/illness relative to MSDs, not looking
in the realm of psychosocial issues, is that correct?

	MR. MADDUX:  That is correct.

	MR. LeGRANDE:  Thanks.

	MR. MADDUX:  I guess we will wrap it up for the day.  I would like to
thank everybody for sticking out a long day on probably not the most
exciting issue in the world.  As we mentioned, the comment period has
been extended until the 30th, so we hope that everybody that has an
interest will submit written comments that we can consider as we craft
the final rule.

	Thank you very much.

	[Whereupon, at 3:48 p.m., the Public Meeting concluded.]

 

 

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