Caterpillar Logistics Services, Inc.
Work-related elbow illness should have been recorded
Apply this to your situation
This order from 2011 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Caterpillar employee developed epicondylitis while repeatedly scanning and handling parts in a distribution facility. The condition led to work restrictions, time away from work, reassignment, and medical treatment. The judge found the company's same-day ergonomic review deficient because it focused mainly on scanning force, lasted less than an hour, and did not examine the employee's actual work practices or the relevant posture and repetition factors. Expert evidence showed tangible causal factors connecting the employee's duties to the condition, and no witness identified a likely non-work cause. The other-than-serious recordkeeping violation was affirmed, with a $900 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1904.4(a)
- Outcome: One other-than-serious failure-to-record item was affirmed, with a $900 penalty.
- Key point: A work-relatedness decision must account for the employee's real duties and relevant ergonomic risk factors, not rely on a brief, incomplete assessment.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Secretary of Labor,
Complainant,
v.
Caterpillar Logistics Services, Inc., DOCKET NO. 09-0901
Respondent,
UAW Local 974,
Authorized Employee
Representative.
Appearances:
Kevin Koplin, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
For Complainant
Brent Clark, Esq., Elizabeth Ash, Esq., Seyfarth Shaw, LLP, Chicago, Illinois
For Respondent
Stephen Yokich, Cornfield and Feldman, Chicago, Illinois
For Authorized Employee Representative
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
conducted an investigation of a Caterpillar Logistics, Inc. (“Respondent”) facility in Morton,
Illinois, between December 11, 2008 and June 5, 2009. As a result of the investigation, OSHA
issued a Citation and Notification of Penalty (“Citation”) to Respondent alleging one other-than
serious violation of the Act with a proposed penalty of $900.00. Respondent timely contested
the Citation. United Auto Workers Local 974 (“Union”) requested, and was granted, party status
pursuant to Section 10(c) of the Act. A trial was conducted over the course of September 21-23
and November 1-3, 2010 in Peoria, Illinois.
Jurisdiction
Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of
the Act. The parties’ stipulations establish that at all times relevant to this action, Respondent
was an employer engaged in a business affecting interstate commerce within the meaning of
Section 3(5) of the Act, 29 U.S.C. §652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).
Applicable Law
To establish a prima facie violation of the Act, the Complainant must prove by a
preponderance of the evidence that: (1) the cited standard applied to the condition; (2) the terms
of the standard were violated; (3) one or more of the employees had access to the cited condition;
and (4) the employer knew, or with the exercise of reasonable diligence could have known, of
the violative condition. Astra Pharmaceutical Products, 9 BNA OSHC 2126, 1981 CCH OSHD
&25,578 (No. 78-6247, 1981).
Stipulations
The parties offered, and the court accepted, the following stipulations:
- Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review
Commission by Section 10(c) of the Act. (Respondent’s Answer and Affirmative Defenses
dated 10/4/2010).
- Respondent is, and at all times hereinafter mentioned was, a corporation, with anoffice and
place of business at 500 Morton Ave., Morton, Illinois, and at all times hereinafter
mentioned, was engaged in distributing parts and related activities. (Respondent’s Answer
and Affirmative Defenses dated 10/4/2010).
- Respondent, at all times hereinafter mentioned, was engaged in a business affecting
2commerce in that Respondent was engaged in handling goods or materials which had been
moved in commerce. (Respondent’s Answer and Affirmative Defenses dated 10/4/2010).
- Respondent, at all times hereinafter mentioned, was an employer employing employees in
said business at the aforesaid workplace. (Respondent’s Answer and Affirmative Defenses
dated 10/4/2010).
- Complainant issued to Respondent a Citation and Notification of Penalty, and pursuant to
Section 10(c) of the Act, Respondent duly filed, by mail, with a representative of the
Complainant, a notice of contest which contested the aforementioned Citation and
Notification of Penalty and the penalty proposed therein; and said notice of contest was
thereupon duly transmitted to the Occupational Safety and Health Review Commission.
(Respondent’s Answer and Affirmative Defenses dated 10/4/2010).
- The work station at which MK worked in Consol Pak is a table slanting downward toward
the associate. The back portion of the table farthest from the associate is approximately 40
inches from the floor. The front part of the table closest to the associate measures
approximately 35 5/8 inches from the floor to the top of the lip on the table, and 35 inches
from the ergonomic mat to the top of the lip. The lip is approximately ¼ inch high. (Joint
Stipulation of Facts and Issues dated 9/10/11).
- The “yellow tote” used in the Consol Pak department is 42 inches long, approximately 19
inches wide, and 6 1/2 inches high. (Joint Stipulation of Facts and Issues dated 9/10/11).
- The “red tote” used in the Consol Pak department is 27 inches long, 19 inches wide, 6 3/4
inches high, and weighs approximately 7 pounds. (Joint Stipulation of Facts and Issues dated
9/10/11).
- The scanning gun used by MK in the Consol Pak department is approximately 9 inches long.
The outside of the handle of the scanning gun is approximately 5 1/2 inches long while the
inside of the handle of the scanning gun is approximately 4 1/4 inches long. (Joint Stipulation
3
of Facts and Issues dated 9/10/11).
-
MK’s identity should be protected from disclosure in the decision issued in this proceeding.
(Joint Stipulation of Facts and Issues dated 9/10/11).
-
Steve Mitchell is an employee of Caterpillar and is the Local Safety Chairman ofUAW Local
- (Signed Stipulation dated 11/1/2010).
-
Caterpillar offers a number of classes on health and safety issues to its employees, including
classes that cover ergonomic issues. (Signed Stipulation dated 11/1/2010).
-
In 2005, Mr. Mitchell took a class entitled “Applied Industrial Ergonomics and Engineering
Guidelines.” The documents contained in Union Exhibit 1 were part of the course materials
for this class. These materials were prepared by a company called Humantech. Caterpillar
currently offers a course with the same title. (Signed Stipulation dated 11/1/2010).
Additional Factual Findings Nine witnesses testified at the trial: (1) MK, the employee whose illness is at issue in this
proceeding; (2) Karl Armstrong, OSHA Compliance Safety and Health Officer (“CSHO”);
(3) Dr. Norma Just, Respondent’s staff physician; (4) Dr. Robert Harrison, Complainant’s expert
physician witness; (5) Andrew Comai, Union’s expert ergonomist witness; (6) Howard Edwards,
Respondent’s Corporate Safety Manager; (7) Dustin Wagner, Respondent’s Safety Manager for
the Morton, Illinois facility; (8) Todd Brown, Respondent’s expert ergonomist witness; and (9)
Dr. Richard Covert, Respondent’s expert physician witness. (Tr. 114, 246, 393, 437, 734, 875,
1011, 1091, 1267). Based on their testimony and discussion of evidentiary exhibits, the court
makes the following additional factual findings.
This case focuses on whether a medical condition (right elbow epicondylitis) experienced
by MK was a recordable, work-related illness which should have been listed on Respondent’s
OSHA 300 Log.1 MK was hired to work in Respondent’s parts distribution facility in Morton,
1 The alleged date of the violation is August 5, 2008, the day Respondent’s company physician diagnosed MK’s
condition as epicondylitis. However, the parties agreed that recording work-related illnesses on an OSHA 300 Log
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Illinois in October, 2007. (Tr. 115). She initially worked in Department 7686, pulling parts from
supply racks, placing them in boxes or totes, and sending them along to the next department. (Tr.
115). On April 28, 2008, she transferred to the night shift in Respondent’s Consol Pak
department (“Consol Pak”). (Tr. 118). Consol Pak consisted of work stations at the end of
fifteen roller conveyor lanes, where employees received plastic totes containing various parts
ordered by Caterpillar dealerships. (Tr. 119; Ex. C-9). Each part, or bag of parts, was known as a
Materials Request (“MR”). (Tr. 186-188).
The typical work process in Consol Pak consisted of: (1) stepping on a pedal to release
totes from the end of a conveyor onto a work station, (2) inputting data into a hand-held scanner,
(3) using the hand-held scanner to scan each tote and all of the parts (or bags of parts) contained
in each tote, and (4) removing the parts from each tote, turning around, and placing them in a
cardboard shipping box (“Type 63 Box”). (Tr. 126, 129, 130, 145-147, 213-215, 218; Ex. C-1,
C-2, C-3, C-4, C-5, C-6, C-9). Respondent’s policy prohibited totes, including parts, from
weighing more than fifty pounds each. (Tr. 121).
Each employee typically handled two or three roller conveyor lanes at a time, processing
an average of 400-1000 MR’s per shift. (Tr. 914). There were often multiple parts in each MR,
resulting in employees handling 2,000 to 3,000 parts per shift. (Tr. 119). On a very busy day,
MK testified that she may handle as many as seven lanes and process as many as 4,000-6,000
parts during a single shift. (Tr. 119, 139). Respondent’s records revealed that MK averaged 642
MR’s per shift during her time in Consol Pak from April 28, 2008 to July 2008. (Tr. 924-925,
1028; R-38, R-39).
In addition to the normal cycle of work described above, MK and other Consol Pak
employees had other duties which were performed periodically throughout their shift. First,
employees were required to assemble their own Type 63 cardboard shipping boxes by folding
them into a cube shape and using a long staple gun to secure the flaps. (Tr. 140, 147; Ex. C-7, C
is a continuing obligation based on information obtained even after the alleged recordability date. (Tr. 674).
5
8, C-9). MK was allowed to assemble and keep 2-3 boxes in her work area at a time. (Tr. 143
144, 148; Ex. C-9). Consol Pak employees typically assembled and filled 8-16 shipping boxes
per shift. (Tr. 898). Second, the plastic totes occasionally got stuck on the roller conveyors and
employees used a long pole with a hook to reach down the conveyor to grab totes and pull them
into their station. (Tr. 123). Third, especially on one particular lane, the foot pedal sometimes
failed to lower the stop bar, and employees had to lift totes, with parts, over the bar to bring them
into their workstation. (Tr. 123-124). Fourth, the hand-held scanners occasionally failed to read
the bar codes on parts, so the scanning motions had to be repeated until the scan properly
registered. (Tr. 130, 240). Fifth, MK occasionally had to carry totes with parts in them to other
departments for processing. (Tr. 137). Sixth, when a stack of empty totes accumulated in a
Consol Pak employee’s work area, the stack of totes was slid over to a conveyor to be moved out
of the area. (Tr. 219). Seventh, once each Type 63 shipping box became full, a shipping label
was printed and stapled to the box, and the box was moved out of the area. (Tr. 222-223).
Lastly, in the category of occasional Consol Pak duties, totes containing parts were sometimes
placed on the floor in Consol Pak by passing forklift drivers. (Tr. 229). Any totes delivered in
this manner were given priority processing over totes which came in by roller conveyor. (Tr.
229)
In late May and early June of 2008, MK began experiencing pain in her right forearm and
right elbow. (Tr. 151). She also began to experience some pain, although significantly less, in
her left elbow. (Tr. 151). She had never had any problems with her elbows until she began
working in Consol Pak. (Tr. 154, 189, 233-234). She purchased and used an elbow wrap from a
retail store, but the pain persisted. (Tr. 152). At first, MK believed her arm pain was just the
result of sore muscles from performing a new and different job. (Tr. 230). But in June of 2008,
MK noticed that the pain in her right elbow was increasing, so she informed several of her
supervisors (they changed frequently during this period) of her condition. (Tr. 153-154, 156-160,
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210).
On July 10, 2008, MK visited Respondent’s on-site medical clinic and reported her arm
pain to Nurse Jeremy Brakeman. (Tr. 161-162, 210). She completed an Employee Incident
Report, on which she indicated “sharp pain at elbow, right elbow-arm” and attributed the pain to
“work in Consol Pak at the Morton facility, repetitive arm movement to do my job.” (Tr. 163;
Ex. C-11). She listed June 23, 2008 as the incident date, referencing a time when her pain level
was highest as she was trying to lift her right arm to punch-out on the time clock. (Tr. 153-154,
164, 210; Ex. C-11). Nurse Brakeman temporarily reassigned MK to another department and
restricted her to a “one-handed job until seen by company MD.” (Tr. 162; Ex. C-13).
On July 15, 2008, MK met with company physician, Dr. Norma Just, who has been
employed by Respondent as a staff physician for twenty years. (Tr. 394, 164-165, 398, 611; Ex.
C-14). MK told Dr. Just that she suspected her elbow pain was caused by the repetitive scanning
motion required in Consol Pak. (Tr. 206, 611). MK also described her non-work activities to Dr.
Just: house cleaning, laundry, and grocery shopping, but no participation in any sports. (Tr. 195,
197, 203, 204). After discussing MK’s work and non-work activities, Dr. Just concluded that her
Consol Pak duties might be causing the elbow pain. (Tr. 403-404, 612-613). Dr. Just told MK at
that time that she did not know what her condition was, was not sure how to treat it, and
recommended that she visit her personal physician. (Tr. 164-166). Dr. Just prescribed continued
light-duty work restrictions, but was later informed that no such job was available for MK. (Tr.
227, 414, 578-579; Ex. C-14, C-18). Therefore, MK was off work from July 15, 2008 through
October of 2008, because her elbow pain prevented her from performing her duties in Consol
Pak and an alternative position conducive to her work restrictions was not available. (Tr. 166;
Ex. C-14).
Dr. Just explained that a medical evaluation alone was not sufficient to determine work-
relatedness, so she requested that Respondent’s safety personnel conduct an Ergonomics/Safety
7
Evaluation of MK’s work area in Consol Pak. (Tr. 600-601; Ex. C-15). After receiving her
request, Dustin Wagoner, Safety Manager for the Morton facility, visited Consol Pak for “30
minutes to an hour.” (Tr. 1036-1038, 1053). He had never had any training on epicondylitis and
had never evaluated a job for risk factors related to epicondylitis. (Tr. 1052). His observations
and evaluation focused primarily on the force and movements involved in using the scanning
gun. (Tr. 945-947). Mr. Wagoner never spoke with MK, or any other Consol Pak employee, in
conducting his work-relatedness assessment. (Tr. 1064-1065). Nor did he ever obtain any
information about how MK specifically performed her duties in Consol Pak. (Tr. 1056-1057,
1064).
Mr. Wagoner was initially contacted, conducted his assessment, and formed his final
opinion, all on July 15, 2008. (Tr. 1036, 1081; Ex. R-44, R-45). The totality of written materials
(notes, observations, conclusions, etc.) which he prepared as part of his investigation into work-
relatedness consisted of twenty-three sentences on two pieces of paper. (Tr. 1081; Ex. R-44, R
45). He ultimately concluded that “I do not believe that the use of the scanner would be a risk
factor for lateral epicondylitis.” (Ex. C-15). When questioned about his assessment and
conclusions at trial, in relation to a video-tape of work activity in Consol Pak, Mr. Wagoner
testified that he believed some employees were “exaggerating” their movements on the video.
(Tr. 1050). There was no support in the record for Mr. Wagoner’s contention.
Dr. Just next saw MK for a follow-up visit on August 5, 2008, at which time she
diagnosed her condition as epicondylitis, a musculoskeletal disorder of the elbow commonly
referred to as “tennis elbow.” (Tr. 414-415). Also that day, based primarily on Dustin
Wagoner’s Ergonomics/Safety Evaluation, Dr. Just concluded that MK’s condition was not
work-related for OSHA purposes and indicated the same on a “Determination of Work
Relatedness” form. (Tr. 417, 601-602; Ex. C-16). Dr. Just was aware at the time that some
medical literature associated certain jobs with epicondylitis, but she did not believe the jobs in
8
those studies were similar to Consol Pak. (Tr. 614, 645-646). Despite her conclusion, she left the
lines on the “Determination of Work Relatedness” form asking whether there was “medical
evidence that this diagnosis may be caused by certain workplace exposures” and whether there
were “non-occupational factors which are primarily responsible for this diagnosis” both blank.
(Tr. 416-419; Ex. C-16).
MK’s next medical visit was with her family doctor, Dr. McMillan, who also diagnosed
her with epicondylitis. (Tr. 166-167). Dr. McMillan told MK that her condition was related to
her work activities. (Tr. 171). On August 19, 2008, MK visited Dr. Just again and informed her
of Dr. McMillan’s findings. (Tr. 167-171). In response, Dr. Just scheduled MK for an
appointment with Dr. Adamson at Great Plains Orthopedics, who had been treating Respondent’s
employees for twenty years. (Tr. 171, 415-416). Dr. Adamson also confirmed Dr. McMillan’s
and Dr. Just’s diagnoses of epicondylitis. (Tr. 416).
During her three months away from work, MK had additional follow-up visits with Dr.
Just, while she received treatment from Dr. Adamson. (Ex. C-14). Dr. Adamson’s treatment
included physical therapy sessions, strengthening exercises at home, and steroid shots in her arm.
(Tr. 172-173, 577). MK also filed a worker’s compensation case during this time, under which
she received temporary total disability benefits while away from her job. (Tr. 177, 241). As
instructed, she reduced her household activities during her time off and tried to limit use of her
right arm by keeping it at her side. (Tr. 207).
MK returned to work in Consol Pak in October of 2008, but continued to receive
treatment for her condition. (Ex. C-14). Soon after returning to work, MK participated in the
annual health examinations provided at Respondent’s facility. (Tr. 173-174). The physician
performing the exams, Dr. Wegman, told MK that she needed to stop working in Consol Pak
because the repetitive motions were preventing her elbow from healing and could result in
permanent nerve damage. (Tr. 173-174).
9
After another follow-up visit on November 13, 2008, Dr. Just filled out a second
“Determination of Work Relatedness” form on which she indicated that there were “non
occupational factors which are primarily responsible for this diagnosis.” (Ex. C-17). However,
the court notes that Dr. Just conceded at trial that she did not actually know of any specific non-
work causes for MK’s epicondylitis. (Tr. 419-420, 666, 949). Respondent’s Corporate Safety
Manager, Howard Edwards, made the ultimate decision to not record MK’s epicondylitis on
Respondent’s OSHA 300 Log, after consultation with Dr. Just and Safety Director Dustin
Wagoner. (Tr. 271-272, 877, 888, 906).
On December 8, 2008, OSHA received a complaint alleging ergonomic hazards and
failure to properly record work place injuries and illnesses on Respondent’s OSHA 300 Logs.
(Tr. 256; Ex. C-12). CSHO Karl Armstrong was assigned to conduct the investigation. (Tr. 255).
During his inspection, CSHO Armstrong reviewed employee medical records, observed the
Consol Pak area while work was being performed, obtained information concerning the quantity
and weight of parts handled, and interviewed individuals who had participated in the decision not
to record MK’s epicondylitis in Respondent’s OSHA 300 Log. (Tr. 262-268). CSHO
Armstrong ultimately recommended the issuance of a citation based on Respondent’s decision
not to record MK’s epicondylitis in its OSHA 300 Log. (Tr. 373).
Every witness during the trial agreed, consistent with American Medical Association
Guide to Evaluation of Disease and Injury Causation, that the three most pertinent risk factors for
determining the cause of a musculoskeletal disorder such as epicondylitis are: (1) force, (2)
posture, and (3) repetition. (Tr. 469, 598-599, 656, 893, 966, 1051, 1382-1383; Ex. R-19). It is
not necessary to have all three risk factors present to indicate causation, but there is typically a
correlation between force and posture, or force and repetition. (Tr. 1063, 1382-1383).
Dr. Harrison, Complainant’s expert physician witness, presented an impressive education
and background in the study and treatment of work-related illnesses. (Ex. C-26). He is employed
10
as a Clinical Professor of Medicine for the University of California at San Francisco, as well as a
Physician Epidemiologist for the California Department of Public Health. (Tr. 438-440). Eighty
to ninety percent of his work consists of diagnosing and treating work-related illnesses. (Tr.
439). Dr. Harrison is board-certified in Internal Medicine and Occupational Medicine; has
authored approximately 40 peer-reviewed medical articles; serves on an ANSI committee which
focuses on diagnosis, treatment, and prevention of work-related musculoskeletal disorders; and
teaches a graduate level course at the University of California at Berkeley focusing on diagnosis,
treatment, and causation of environmental injuries and illnesses. (Tr. 442-443, 447, 453). He has
treated thousands of patients with work-related musculoskeletal disorders, including
epicondylitis. (Tr. 454-455).
Dr. Harrison reviewed MK’s medical records, her deposition testimony, a three-hour
video of work activities in Consol Pak,2 and interviewed MK by telephone. (Tr. 458). His
professional medical opinion was that there were sufficient risk factors (poor postures of the
wrist, hand, and forearm, moderate repetition, and light force) present in Consol Pak work
activities to conclude within a reasonable degree of medical certainty that MK’s epicondylitis
was work-related. (Tr. 461, 468, 482; Ex. C-47). Furthermore, as with every other witness in
this case, Dr. Harrison was unable to identify any non-work activity as the likely cause of her
condition. (Tr. 484, 489).
Epicondylitis is caused by damage to the muscles and tendons that connect to the elbow.
(Tr. 467, 1273-1274, 1283). Dr. Harrison acknowledged that it can result from both work and
non-work activities. (Tr. 467). He further explained that the physiologically neutral position of
the hand, wrist, and forearm is with the thumb pointed up, as if about to shake someone’s hand.
(Tr. 468, 529). The posture risk factor, in a causal analysis, focuses on any deviations from this
2 During the discovery phase of the litigation, the parties observed and video-taped employees working in Consol
Pak for approximately three hours. (Tr. 277; Ex. C-9). MK testified, and the court accepts, that the video accurately
depicts her job duties when she worked in Consol Pak. (Tr. 190).
11
neutral position. Pronation is movement which rotates the thumb downward from this neutral
position. (Tr. 529; Ex. C-28). Supination is rotating the thumb so that the palm faces upward.
(Tr. 529; Ex. C-28). Wrist extension is lifting the hand upward. (Ex. C-29). Flexion is moving
the hand downward. (Ex. C-29). Ulnar deviation is moving the wrist laterally outward. (Ex. C
29). Radial deviation is moving the wrist laterally inward. (Ex. C-29). “Excessive” or “extreme”
deviations from the neutral position are those which go beyond 45 degrees, but are not necessary
to make a determination that poor postures are present as risks factor for epicondylitis. (Tr. 529,
532-533).
While viewing the Consol Pak video, Dr. Harrison observed employees engaging in
repeated, poor postural positions of the wrist, hand, forearm, and elbow, such as excessive wrist
pronation and supination, wrist extension, ulnar deviations, elbow flexion, and occasional wrist
extension and flexion. (Tr. 463-464, 468-469, 470, 477, 499, 502, 520-523, 525, 527-528; Ex.
C-9, C-28, C-29, C-31, C-32, C-33, C-34, C-35). From this, he determined that poor posture was
a risk factor which was present in the Consol Pak job. Even Dr. Just and Corporate Safety
Manager Edwards conceded at trial that photographs and video of work activities in Consol Pak
demonstrated deviations of wrist and arm postures from the neutral position (Tr. 589-593, 596
597, 652-654, 690, 695-697, 902, 905).
As to repetition as a risk factor, Dr. Harrison testified that there is no fixed definition in
the medical community, but two cycles per minute is generally considered to be repetitive. (Tr.
478, 480, 503). Every witness agreed, with the exception of CSHO Armstrong, 3 that the average
cycle time for scanning a tote in Consol Pak was about 30 seconds (two totes per minute). (Tr.
268, 272-273, 478, 703-706, 897, 1247, 1351). From his own observations of Consol Pak work
activities, Dr. Harrison determined that repetition was a risk factor which was present in the
Consol Pak job. (Tr. 478).
3 CSHO Armstrong evaluated the video of the Consol Pak job being performed and concluded that employees
averaged 3.7 part scans per minute. (Tr. 279; Ex. C-24). Since his calculations contradicted every other witness, the
court rejects his calculation on this issue.
12
All of the witnesses, including Dr. Harrison, agreed that force, the third risk factor, was
low and of minimal relevance in evaluating a causal connection between MK’s condition and the
Consol Pak job. (Tr. 468, 485, 510, 513-514, 896, 1330-1331).4 Dr. Harrison further explained
that even if force was eliminated as a risk factor completely, there were sufficient posture
deviations of the wrist, forearm, and elbow, combined with sufficient repetition, to convince him
that MK’s epicondylitis was work-related. (Tr. 514).
In contrast, Dr. Covert, Respondent’s expert physician witness, testified that he did not
see any wrist or arm posture problems in performing the Consol Pak duties. He testified that for
non-neutral postures to be a contributing factor, they must be extreme, at or near full pronation or
full supination, or wrists fully flexed or fully extended. (Tr. 1334). His opinion was inconsistent
with the testimony of Dr. Harrison, Dr. Just, Mr. Edwards, and the AMA Guide to Evaluation of
Disease and Injury Causation, and therefore, given no weight by the court. (Tr. 529, 532, 596,
902-904; Ex. R-19).
When asked his opinion of what constitutes high repetition, Dr. Covert referred to a study
in which 1,250-1,500 hand/arm movements per hour were considered repetitive. (Tr. 1346
1347). This breaks down to about 21-25 hand movements per minute. The Consol Pak shift
consisted of 420 minutes of total work time. (Tr. 992). Therefore, Dr. Covert would require
8,750 to 10,500 hand movements per shift for repetition to be a present risk factor. Mr. Brown,
Respondent’s ergonomist, testified that cycling a single plastic tote, containing only one part,
required 8-9 hand/arm movements. (Tr. 1248). The court notes that the video footage of Consol
Pak work activities clearly reveals that most totes contained multiple parts, necessitating
additional hand/arm movements per tote. (Ex. C-9).
Applying Dr. Covert’s test for repetition: 9 hand/arm movements per scanned tote
(assuming only one part in each tote), multiplied by an average of 2 totes per minute, multiplied
4
Dr. Covert testified that when you have low weight (as in Consol Pak) with high repetition, such combination is
sufficient to find a causal connection between MK’s condition and the Consol Pak job. (Tr. 1404).
13
by a 420 minute shift, equals an average of 7,560 hand/arm movements per shift in the Consol
Pak job. That number falls just below Dr. Covert’s threshold for repetitiveness. When factoring
in repeated scanning motions due to the failure of the scanning gun, the fact that most totes
contained more than one part to be scanned, and the array of other less-frequent jobs each
employee had to perform periodically throughout each shift (constructing shipping boxes,
moving stacks of empty totes, grabbing totes with the pole, etc.), the court finds that, even using
Dr. Covert’s test, the Consol Pak job duties were repetitive.
Based on information in several studies discussed by the physicians and ergonomists who
testified at trial, researchers have found evidence that certain non-work-related characteristics
can increase the risk of developing epicondylitis: excessive weight, being female, a history of
smoking, diabetes, and the use of certain medications. (Tr. 490, 538, 1155, 1365). However, Dr.
Covert could not testify within a reasonable degree of medical certainty that any of MK’s non-
work activities or characteristics caused her epicondylitis. (Tr. 1370-1371, 1440, 1444).5 Nor
could he testify within a reasonable degree of medical certainty that her epicondylitis was caused
by her Consol Pak duties. (Tr. 1322). In sum, Dr. Covert could not, within a reasonable degree
of medical certainty, find any cause for MK’s epicondylitis.
Both Dr. Harrison and Dr. Covert provided expert medical testimony which was helpful
and relevant to this proceeding, and in some instances, both doctors were in agreement. For
areas in which they disagreed, based on his significant education, experience, and ability to
clearly articulate the basis for his opinions, the court gave greater weight to the testimony of Dr.
Harrison than Dr. Covert. Accordingly, the court concludes that posture, repetition, and force
(although to a much lesser degree) were present in the Consol Pak duties as risk factors for
epicondylitis.
One issue raised by Respondent is that the increased pain in MK’s left elbow during her
5
This inability to identify any non-work activity as the likely cause of her condition was consistent with Dr.
Harrison’s testimony (as well as every other witness in this case). (Tr. 419-420, 484, 489, 666, 949).
14
three months off work supported its conclusion that her epicondylitis was not work-related.
However, Dr. Harrison explained this phenomenon to the satisfaction of the court. First, he
noted that MK first reported experiencing some pain in her left elbow back in July 2008,
although to a much lesser extent than her right elbow, while still working in Consol Pak. (Tr.
491-492). Dr. Harrison testified that that his review of the work activities depicted in the Consol
Pak video revealed risk factors for epicondylitis in the left elbow as well. (Tr. 491-492). Second,
Dr. Harrison explained that it is common for a person experiencing pain from epicondylitis in
one arm, with instructions not to use that arm, to compensate for the necessary activities in their
daily life, by overusing the opposite arm. (Tr. 492).
At the time of trial, MK was still employed by Respondent, but was working in a
different department, placing parts in racks. (Tr. 175-176). She testified that her condition has
improved and that she is no longer receiving any medical treatment for epicondylitis. (Tr. 178).
Discussion
Citation 1 Item 1
Complainant alleged in Citation 1 Item 1 that:
29 C.F.R. §1904.4(a): A work-related illness meeting the criteria for
recordability was not recorded on the OSHA 300 Form or equivalent. On
or about August 5, 2008, an employee suffered from a work-related
illness, epicondylitis, that resulted in restricted work, days away from
work and medical treatment. The employer did not record this illness on
its OSHA 300 or equivalent form.6
6 Complainant originally alleged a violation of 29 C.F.R. §1904.29(b)(1), but Complainant amended the regulatory
reference when it filed the Complaint to 29 C.F.R. §1904.4(a), pursuant to Commission Rule 34(a)(3) and F.R.C.P.
-
(Tr. 326-333).
15
The cited standard provides:29 C.F.R. §1904.4(a): Each employer required by this Part to keep records of fatalities, injuries, and illnesses must record each fatality, injury and illness that: (1) is work-related, and (2) is a new case; and (3) meets one or more of the general recording criteria of §1904.7 or the application to specific cases of §1904.8 through §1904.12.All employers covered by the Act are required to comply with Part 1904 record-keeping
requirements unless specifically exempted. 29 C.F.R. §1904, Subpart B – Scope. No exemption
was urged in this case, and upon review, the court finds none that were applicable to Respondent.
29 C.F.R. §§1904.1, 1904.2, and Appendix A to Subpart B. Based on the record, as well as the
parties’ stipulations, Respondent was required to maintain, and did maintain, OSHA 300 logs.
(Ex. C-25). It was undisputed that MK’s condition was correctly diagnosed as epicondylitis,
which resulted in lost work days, work restrictions and limitations, temporary reassignment to a
different position, and medical treatment beyond first aid. (Tr. 166-167, 414-416, 889).
Therefore, MK’s condition met the general recordability criteria in the regulations. 29 C.F.R.
§1904.7(a) & (b). It was also clearly established that MK’s condition was a “new case” in that
she had not previously experienced an injury or illness of the same type that affected the same
part of her body. 29 C.F.R. §1904.6(a).
Therefore, the remaining issue, and the focus of the parties’ dispute in this case, is
whether or not MK’s condition was “work-related.” Several subsections of the §1904
regulations provide guidance in determining work-relatedness. For example:
29 C.F.R. §1904.5(a): Basic requirement: you must consider an injury or
illness to be work-related if an event or exposure in the work environment
either caused or contributed to the resulting condition or significantly
16
aggravated a pre-existing injury or illness. Work-relatedness is presumed
for injuries and illnesses resulting from events or exposures occurring in
the work environment, unless an exception in §1904.5(b)(2) specifically
applies.
and;
29 C.F.R. §1904.5(b)(3): How do I handle a case if it is not obvious
whether the precipitating event or exposure occurred in the work
environment or occurred away from work? In these situations, you must
evaluate the employee’s work duties and environment to decide whether or
not one or more events or exposures in the work environment either caused
or contributed to the resulting condition or significantly aggravated a pre-
existing condition.
An employee’s work activities do not have to be the cause of an injury or illness, but
rather a cause of an injury or illness. 29 C.F.R. §1904.5(b)(2)(ii), (iii), (iv), (v), and (vi)
(referencing recordability exemptions for non-work activities which are the sole cause of an
injury or illness). In this instance, none of the fact or expert witnesses who testified were able to
identify a non-work activity as a likely cause of MK’s epicondylitis. While this fact is certainly
not dispositive of the case, it is relevant to a determination of whether MK’s work activities may
have caused or contributed to her illness.
To be absolutely clear, the court is not implying any reversal of the burden here. It is
Complainant’s burden to show, by a preponderance of the evidence, that MK’s epicondylitis was
work-related, and therefore recordable on Respondent’s OSHA 300 Log. Home Depot, 22 BNA
OSHC 1863, 2009 CCH OSHD 33,031 (No. 07-0359, 2009). It is not Respondent’s burden to
prove that MK’s condition was caused by non-work activities. As the Commission stated fairly
recently, an employee’s “work itself must be a tangible, discernible, causal factor to render an
17
injury or illness work-related.” Home Depot at *3. “Pure speculation that some event in the
workplace may have caused or contributed to an injury or illness would not be enough...” Id.
In this case, Complainant has presented sufficient evidence to establish that MK’s
epicondylitis was work-related. As Dr. Just testified, a physician’s evaluation of a patient alone
is insufficient to determine work-relatedness. (Tr. 408). Therefore, the court closely examined
the evidence surrounding the Ergonomic/Safety Evaluation requested by Dr. Just, and performed
by Safety Manager Dustin Wagoner. First, although virtually every witness agreed that an
examination of force, repetition, and posture were essential to determining a possible causal
connection, Mr. Wagoner focused primarily on the force necessary to operate the scanning gun.
Second, Mr. Wagoner spent less than one hour observing Consol Pak work activities for the
purposes of his assessment. Third, he had never had any training on epicondylitis and had never
evaluated a job for risk factors related to epicondylitis. Fourth, Mr. Wagoner did not speak with
MK, or any other Consol Pak employee, about their actual job duties in conducting his work-
relatedness assessment. He never obtained any information about how MK specifically
performed her job. Lastly, Mr. Wagoner’s assessment was started and completed in the same
day, and the entire universe of notes, observations, conclusions, etc., consisted of only twenty-
three sentences on portions of two pieces of paper. Based on the factors that both Complainant’s
and Respondent’s witnesses identified for a thorough work-relatedness assessment in this type of
situation, the court concludes that Respondent’s assessment of work-relatedness was deficient.
The record establishes that a thorough work-relatedness assessment would have revealed the
presence of all three risk factors (improper wrist, forearm, and elbow postures, combined with
moderate repetitiveness, and low force) for epicondylitis in Consol Pak.
By August 5, 2008, several relevant events had occurred: (1) MK had reported her elbow
pain to multiple supervisors and to Respondent’s medical staff; (2) MK had been diagnosed with
epicondylitis by Respondent’s staff physician; (3) MK had been temporarily re-assigned to
18
another department with work restrictions, (4) MK had been off work for three weeks as a result
of her condition; (5) Respondent completed a work-relatedness assessment (albeit deficient) of
the work activities in Consol Pak. The improper arm, hand, and elbow postures, repetition, and
force necessary to work in Consol Pak were apparent on that date, and a thorough and complete
analysis of these risk factors would have revealed indications of work-relatedness.
The preponderance of the evidence convinces the court that there were tangible,
discernible, causal factors indicating that MK’s work activities in Consol Pak were at least a
contributing cause, if not the sole cause, of her epicondylitis. Home Depot, supra. Articulated in
other terms, the evidence establishes at least some causal connection between MK’s work
activities and MK’s epicondylitis. Pepperidge Farms, 17 BNA OSHC 1993, 1995-97 CCH
OSHD ¶31,301 (No. 89-265, 1997). Accordingly, MK’s condition should have been recorded
on Respondent’s OSHA 300 Log.7 It was not, and Respondent had specific knowledge that it
was not.8 Therefore, Citation 1 Item 1 will be affirmed.
Affirmative Defenses
Respondent withdrew its previous assertion of a statute of limitations defense on October
7, 2010, and did not argue any other affirmative defenses in its post-hearing brief. Accordingly,
any additional affirmative defenses which were pled are deemed abandoned. Georgia-Pacific
Corp., 15 BNA OSHC 1127, 1991 CCH OSHD ¶29,395 (No. 89-2713, 1991).
7 The court notes the recent Federal Register publications concerning 29 C.F.R. §1904.4 and musculoskeletal
disorders. As the recent Federal Register publications apparently relate only to modification of OSHA 300 Forms to
include specific columns for recording musculoskeletal disorders, they are not relevant to the disputed issues in this
proceeding. See 75 F.R. 4728-01 & 10738-01.
8 Complainant failed to offer Respondent’s 2008 OSHA 300 Log into evidence. However, as Corporate Safety
Manager Edwards, Safety Manager Wagoner, and Dr. Just all testified in detail concerning Respondent’s reasons for
not recording MK’s condition, the court will treat its omission from the 2008 log as an undisputed fact despite the
log’s absence from the record.
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Penalty
In calculating the appropriate penalty for affirmed violations, Section 17(j) of the Act
requires the Commission to give Adue consideration@ to four criteria: (1) the size of the
employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4)
the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the primary
consideration and is determined by the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones
Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD &29,964 (No. 87-2059, 1993).
It is well established that Commission judges conduct de novo penalty determinations and
have full discretion to assess penalties based on the facts of each case and the applicable
statutory criteria. Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975); Valdak Corp.,
17 BNA OSHC 1135 (No. 93-0239, 1995). Respondent is a large employer, with approximately
12,000 employees in 50 facilities throughout the United States. (Tr. 876-877). Based on
Respondent’s size, the nature of this non-serious record-keeping violation, and the totality of the
factual circumstances discussed above, the court assesses penalty as set out below.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Citation 1 Item 1 is AFFIRMED and a penalty of $900.00 is ASSESSED.
Date: May 24, 2011 __/s/__________
Denver, Colorado PATRICK B. AUGUSTINE
Judge, OSHRC
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