July 2, 1992

Mr. Patrick R. Tyson
Constangy, Brooks & Smith
Suite 2400
230 Peachtree Street, N.W.
Atlanta, Georgia 30303-1557

Dear Mr. Tyson:

Thank you for your letter of April 28 requesting interpretations on a number of OSHA injury and illness recordkeeping issues. I will address your questions by first restating each one and then answering it. Wherever possible, I will reference the enclosed Recordkeeping Guidelines for Occupational Injuries and Illness, 1986, by referencing the page number and question(s) that apply.

Q1. An employee engaged in a repetitive work activity complains about pain in the back, neck, and shoulders, and as a consequence is placed on a restricted duty status for a few days. While it is clear that a case involving the back is analyzed as an injury, how should the case be characterized on the OSHA 200 Log when the employee complains equally about all three body parts?

A1. The generalization of recording back cases as injuries was made to keep recordkeeping determinations as simple as possible. (page 38, D-4) Because there is more involved than just the back in the above situation, the case should be evaluated on all the information available. This case would be characterized as a cumulative trauma disorder (CTD) involving multiple body parts.

Q2. Does the 30-day rule explained on page 15 of the Ergonomics Program Management Guidelines for Meatpacking apply to cases other than cumulative trauma disorder cases?

A2. No. The 30-day rule applies only to CTDs. Differentiation between new incidents and recurrences is addressed in Question B-12 on page 31 for other types of cases.

Q3. An employee with tendinitis of the left wrist, which has been recorded on the OSHA 200 Log, has gone to a orthopedist for treatments on several occasions, but stops going to the doctor for more than 30 days. The employee then complains to the employer about pain in the same wrist and seeks a doctor's appointment. In questioning the employee about the condition, the employee states that although she has not been to the doctor for more than thirty days, her wrist has continued to hurt. If the employee is administered medical treatment or placed on restricted duty, is this considered a new recordable case under the 30-day rule?

Our interpretation of the 30-day rule is that it constitutes a rebuttable presumption. In the absence of any evidence of continuing symptoms, if medical treatment is not sought for 30 days, there is a presumption that the initial case was resolved. This presumption is rebutted, however, if the employee states that he or she has continued to experience pain during the 30-day period. Likewise, if the doctor diagnoses a case and tells the employee to return for follow-up treatment or surgery in 45 days, we believe the presumption is rebutted. Is this interpretation correct?

A3. The 30-day rule is not a rebuttable presumption. If the employee did not seek treatment for thirty days, the case is presumed to have been resolved. If new symptoms arise or additional treatment is sought after that period, a new case must be entered on the Log. The "new case" criteria is intended to be used as a medical management tool. If a worker continues to be symptomatic, the employer should be instituting measures to relieve the employee from exposures that contribute to the problem.

[This document was edited on 06/28/00 to strike information that no longer reflects current OSHA policy.]

Q4. An employee is temporarily transferred from time to time for the convenience of the employer to a variety of different jobs as operational needs demand. These temporary assignments are usually only for a few days at a time before the employee is returned to his regularly assigned job. If the employee is injured during one of the temporary assignments, restricted from doing some of the components of the temporary job, and transferred back to his regular job, is this a recordable case, and if so, how should restricted work activity be calculated?

A4. Yes, this is a recordable case. Restricted work activity cases occur when, because of injury or illness, (1) the employee was assigned to another job on a temporary basis, or (2) the employee worked at a permanent job less than full time, or (3) the employee worked at his or her permanently assigned job but could not perform all the duties normally connected with it. (page 48) In the above situation, the case meets criteria (3) of the restricted work activity definition. Part of the employee's normal duties includes performing a variety of different jobs at certain times throughout the year. Because the employee was restricted from doing some components of a particular job he was required to perform, days of restricted work activity should be counted up to the point where he is able to perform all the duties connected with that job.

Q5. A piece-rate worker in a sewing plant complains that her wrists hurt as a result of performing a sewing job. The employee is sent to a doctor who advises that the employee can return to work, but should work at 80% of her usual production rate. No other restrictions are placed on the employee. Is this recordable on the OSHA 200 Log as restricted work activity? What is OSHA's position on such modified duty assignments?

A5. No, this is not a recordable case based on restricted work activity. Production rate or production output does not enter into the restricted work activity criteria.

Q6. Six employees who are on the payroll at Facility A, supervised by Facility A, and whose paychecks are issued by Facility A, report to work at Facility B. Should injuries and illnesses occurring to these employees be recorded on the OSHA 200 Logs of Facility A or Facility B, or should a separate OSHA 200 Log be maintained for these employees at Facility B?

A6. Record the cases on the Log of Facility B. For employees who normally report to one location but are injured at another one of the employer's establishments where they are temporarily working, a recordable case would be entered on the records of the establishment in which they were injured or became ill. (page 20, A-10)

Q7. In entering the "Date of Injury or On-set of Illness" in Column B of the OSHA 200 Log, the directions on the back of the Log state that the date of "initial diagnosis of illness" should be entered. What date should be entered (a) when objective physical findings are observed by a company nurse or by a supervisor days before the condition is diagnosed by a physician, and (b) when "medical treatment" as that term is defined in the BLS "Recordkeeping Guidelines" is administered to treat subjective symptoms, but the case is never diagnosed by a physician?

A7. For OSHA injury and illness recordkeeping purposes, diagnosis means recognition. Diagnosis may be by a physician, registered nurse, or a person who by training or experience is capable to make such a determination. In situation (a), the date of observation of physical findings should be entered on the Log. For situation (b), the first date medical treatment was administered should be used.

Q8. Is a case recordable on the OSHA 200 Log where an employee is placed on restricted duty on the day of the injury, but is released to return to regular work activity the following day? Question C-2 on Page 52 of the BLS "Recordkeeping Guidelines" suggests that this would constitute a recordable case. The "Recordkeeping Guidelines" provide on Page 47, however, that "injuries and illnesses are not considered lost workday cases unless they affect the employee beyond the day of injury or onset of illness."

A8. The case described would be a recordable case in column 6 or 13 of the Log, nonfatal cases without lost workdays. The situation described on page 47 of the Guidelines applies only to cases with lost workdays (columns 2 and 9 of the Log).

Q9. Do back supports (as opposed to braces or devices that restrict movement) issued in response to complaints of pain constitute "medical treatment?"

A9. This question revolves around the issue of medical treatment vs first aid for various orthopedic devices. Our interpretation of the recordkeeping guidelines is that the use of orthopedic devices designed to immobilize a body part (such as the back) are considered medical treatment. Wraps or non-constraining devices are considered first aid treatment, regardless of how long or how often they are used. Back supports would not be considered medical treatment if they do not immobilize the back.

Q10. We understand that subjective symptoms of upper extremity cumulative trauma disorders (CTDs) are recordable when coupled with either "medical treatment" or lost workdays. Does the issuance of wrist/thumb support in response to a purely subjective CTD symptom constitute "medical treatment"? Assuming that none of these devices restrict the employees ability to perform all aspects of his or her regular job, does it make a difference whether the support allows wrist flexibility (see Exhibits A, B, and C) or whether it restricts movement (see Exhibit D)?

A10. See answer A9. Exhibits A, B, and C would all be considered first aid while exhibit D is considered medical treatment.

Q11. Does the use of devices such as Exhibits A, B, C, and D and similar back support devices as purely preventative measures constitute "medical treatment"?

A11. Preventative medicine without the existence of an injury or illness does not constitute a recordable case. There must be an injury or illness present for a case to be recorded on the OSHA Log. The employer must be careful, however, not to define "preventative" including treatment given to stop an existing condition from becoming worse. Thus, once a person is symptomatic, treatment is not considered preventative.

Q12. When a case is initially recorded on the OSHA 200 Log in Column F, "description of Injury or Illness" as "pain and swelling right wrist" is subsequently diagnosed as carpal tunnel syndrome or some other cumulative trauma disorder, should the entry in Column F be changed to reflect the subsequent, formal diagnosis?

A12. Yes. Section E on page 23 of the Guidelines states that employers are required to update the Log to reflect changes which occur in recorded cases after the end of the calendar year. As stated on page 11 of the Guidelines, good entries for column F briefly describe the nature of the injury or illness and the part(s) of the body affected. An accurate description of the case increases the utility of the records for any user.

Q13. Some companies use parking lots that are several blocks away from the actual facility where the employees work. How should a company analyze a case in which an employee who parks his or her car several blocks from the facility is injured while walking on a public street between the parking lot and the facility?

A13. This case should be evaluated using the criteria established in the section "Injuries and illnesses resulting from events or exposures off premises" on pages 35 through 37 of the Guidelines. Work relationship must be established, it is not presumed. The employee must be engaged in a work related activity or present as a condition of employment for a case to be work related. If the employee is simply walking on a public street from the parking lot to the place of employment as part of the normal commute, the incident would not be recordable. (page 36, C-14)

Q14. A variety of analgesic balms (e.g. Ben Gay) are applied in response to employee complaints about wrist or back pain. Is an over-the-counter, analgesic balm considered "use of non-prescription medication" which would be first aide, or is it "application of heat therapy" which would constitute medical treatment during the second or subsequent visit to medical personnel?

A14. Analgesic balms (such as Ben Gay) are not considered heat treatment for OSHA injury and illness recordkeeping purposes. The use of analgesic balms must be evaluated using the concept of prescription vs non-prescription medication to determine if they meet the definition of medical treatment.

Q15. At what point may a company stop counting days away from work when an employee is out of work on an extended disability leave of absence as a result of an injury or illness? Many of these cases in which the employee has filed for workers' compensation benefits remain open in litigation for several years. Must the company continue to count days until the workers' compensation case is settled, until the employee is declared medically disabled, or until some other designated time?

A15. Lost workdays should be counted for these cases until a final determination is made that the injured or ill employee is totally disabled. (page 51, B-13) However, it is not the workers' compensation system that makes this determination for OSHA recordkeeping purposes. The employer has the sole responsibility for making the final determination used to stop the count of lost workdays.

Q16. If a company sponsors a voluntary blood drive in its parking lot and immediately after giving blood, an employee walks onto the facility grounds and passes out, is that case considered to be a work-related recordable loss of consciousness injury case or is it considered to be merely symptoms arising from a pre-existing non-work-related condition? What if the employee receives a separate injury (e.g., laceration to heat) requiring medical treatment as a result of losing consciousness?

A16. In the first scenario presented, this case would not be considered recordable due to symptoms arising from a pre- existing non-work related condition. However, in the second scenario, the case would be recordable due to the laceration occurring on premises.

Q17. An employee loses consciousness shortly after reporting to work. There is no apparent work-related reason why the employee has lost consciousness. Is this a recordable case?

A17. Injuries and illnesses occurring on premises are presumed to be work related (page 34, C-7 & C-8). Usually, there will be an identifiable event or exposure to which the employer or employee can attribute the injury or illness. However, this is not necessary for recordkeeping purposes. If it seems likely that an event or exposure either caused or contributed to the case, the case is recordable, even through the exact time or location of the particular event or exposure cannot be identified. If the case is known to result from some non-work related condition and merely surfaces at work, then the employer need not record the case. In these situations, employers may want to document the reasons they feel the case is not work related. (page 32, B-17)

Q18. How do you calculate restricted work activity for an employee who regularly is assigned to overtime two days per week, and because of a work-related injury, is directed not to perform any overtime activity for two weeks? Would this be analyzed as four days of restricted work activity or ten?

A18. Restricted work activity occurs when an employee is unable to perform all or any part of his or her normal assignment during all or any part of the normal workday or shift. In the situation described above, the scheduled overtime would be considered part of the normal shift. Therefore, the days the employee was unable to work the scheduled overtime should be counted as restricted workdays. A total of four days would be counted. (page 48, B-3) If the overtime was the only work the employee was scheduled to work that day (i.e. weekend work), then the days missed would be counted as days away from work.

[This document was edited on 06/28/00 to strike information that no longer reflects current OSHA policy.]

Q19. In Puerto Rico, under the El Fundo Workers' Compensation System, an employee who incurs a work-related injury or illness is sent to what in effect is a screening doctor. This doctor will examine the employee and determine the specialist that should assess the employee's condition. Typically, the employee will not return to work until he is examined by the specialist. Should the days away from work that are incurred prior to seeing the specialist be counted as lost time or should this determination be based solely on the specialist's determination of the employee's condition?

A19. In counting lost workdays, the emphasis is on the employee's ability to perform his or her work. Time off to seek medical attention is not considered to be lost workdays. If lost time is due solely to adherence to State or local health codes, the case would not be recordable as involving lost worktime. (page 50, B-17) The employer needs to make the determination of whether the employee was able to work (at full capacity) or not, depending on the circumstances surrounding each individual case.

Q20. A number of companies have designated days where employees can either remain at work or participate/observe company- sponsored recreational activities. The employees may not take these days off and must elect between remaining at the plant or at the site of the recreational activities until the conclusion of their normal workday. Are injuries incurred by employees who participate in or observe these recreational activities considered work-related for OSHA recordkeeping purposes?

A20. For OSHA recordkeeping purposes, the situation described above involves employees who are participating/observing recreational activities as a condition of their employment. Any injuries incurred by these employees would be considered work related.

Q21. If an employee who is at work bends over to tie his shoe and his back goes out, is that considered to be a work-related injury? Does it make any difference to the analysis whether the employee had a pre-existing back condition?

A21. If an event (such as tieing one's shoe) occurred in the work environment and caused or contributed to the injury, the case would be work related. An employee's physical defect or pre-existing condition does not affect the determination of recordability. (page 31 and 32, B-13 through B-16)

[This document was edited on 06/28/00 to strike information that no longer reflects current OSHA policy.]

Q22. If an employee is exposed to chemical fumes (assume that the exposure is of longer duration than an instantaneous exposure), is the incident recordable as an occupational illness if (a) the employee complains of a headache, (b) the employee complains of nausea, or (c) the employee has a nosebleed? Also please quantify the duration of chemical exposure that differentiates instantaneous exposure from the duration of exposure necessary for an incident to be analyzed as an illness.

A22. Subjective symptoms are not recordable if there is no apparent association with the work environment. Employers should be aware that many subjective complaints, including feeling of malaise, headache, and nausea are symptomatic of a wide range of diseases, a number of which are occupational in origin. (page 42, E-16) In the situation described above, a clear relationship exists between the work environment and the employee's symptoms. The case should be recorded for each scenario. As per Pat Tyson, the snapping of one's fingers is an instantaneous event. Anything longer is non-instantaneous.

Q23. Many companies contract out their security services. The outside security service provides a security supervisor and several hourly employees who report to that supervisor. In some cases, the host company directs the day-to-day activities of the supervisor who in turn directs the day-to- day activities of his employees. Would the supervisor and employees all be considered independent contractors for OSHA recordkeeping purposes, or is it possible that the supervisor would be considered an employee of the host company while his employees would be considered independent contractors?

A23. The records should be kept by the firm responsible for the day-to-day direction of the employee's activities. (page 24, A-2) In the above situation, the supervisor would be considered an employee of the host firm. Assuming the supervisor directs his employees based on the direction he receives from the host firm, those employees would also be considered employees of the host firm. The using firm would be demonstrating that level of control over the employees envisioned in the Dayton Tire case (Datyon Tire & Rubber Company v OSAHRC 539 F2d 242, D.C. Cir. 1976). For OSHA recordkeeping purposes, the employees must be receiving day- to-day supervision from the supplying firm in order to be considered employees of that firm.

Q24. What guidance can you give regarding the recordability of stress cases. While the Recordkeeping Guidelines (pg. 42) state that work related stress cases should be classified as column 7(g) cases ("All other occupational illnesses"), the Guidelines are not instructive as to what triggers recordability. In many cases of employee stress, employees will report numerous subjectively perceived sources of stress including the workplace. Is that sufficient to trigger recordability? Also, employee complaints of stress (along with other personal/psychological problems) are often addressed through "employee assistance programs". The purpose of these programs is to provide confidential counselling to employees for a variety of problems. Including cases of "stress" reported through these programs (but not processed through workers' compensation) may cause employees severe embarrassment, not to mention violating employee/psychiatrist privileges. Please provide some guidance in this area.

A24. If it seems likely that an event or exposure in the work environment either caused or contributed to the case, the case is recordable. (page 32, B-17) The act says that the employer is responsible for keeping the records. Recordable injuries and illnesses must be entered on the Log as early as practicable but no later than six workdays after the employer receives information that a case has Log as early as practicable but no later than six workdays after the employer receives information that a case has occurred. (page 48, B-5) When staff of the "employee assistance programs" receive information that an OSHA recordable case has occurred, it is considered that the employer has received this information.

[This document was edited on 06/28/00 to strike information that no longer reflects current OSHA policy.]

I hope this information will answer your questions about the OSHA injury and illness recordkeeping requirements. If you have further questions please contact my staff at (202) 523-1463.

Sincerely,

Stephen A. Newell
Acting Director
Office of Statistics