November 30, 2004

Neil H. Wasser
Constangy, Brooks & Smith, LLC
Suite 2400
230 Peachtree Street, N.W.
Atlanta, Georgia 30303-1557

Dear Mr. Wasser:

Thank you for your June 28, 2004 letter to the Occupational Safety and Health Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904. Specifically, you are requesting an interpretation regarding the determination of the date of an injury or illness for OSHA recordkeeping purposes. In your letter, you provide an example of a case that illustrates your concern. Your question has been restated below.

Scenario:   On November 15, 2003, an employee in a job involving repetitive motion work reports to the Company Medical Department complaining of bilateral wrist pain. The employee is provided conservative first aid treatment and returns to his job. Over time, the employee's pain symptoms continue and gradually become worse. On February 15, 2004, the employee is seen by a physician, is diagnosed with bilateral carpal tunnel syndrome, and is provided medical treatment for his illness condition. Later in the 2004 calendar year, the employee's condition requires surgery and the employee incurs days away from work.

Question: What date should be used in column D (date of injury or onset of illness) of the OSHA 300 Log – November 15, 2003 or February 15, 2004?

Response: The scenario described in your letter indicates that an employee had a previous work-related injury or illness that did not result in the recording criteria and thus was not recorded at that time. As set out in 1904.6:

1904.6(a)
Basic requirement You must consider an injury or illness to be a "new case" if:

1904.6(a)(1)
The employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body, or

1904.6(a)(2)
The employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms had disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear.

Therefore, the case must be considered a new case, and recorded in February 15, 2004, because the employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body.

In addition, the Recordkeeping Policies and Procedures Manual CPL 2-0.131, Chapter V, Frequently Asked Question (FAQ) 29-5 says:

If an employee reports an injury or illness and receives medical treatment this year, but states that the symptoms first arose at some unspecified date last year, on which year's log do I record the case?

Ordinarily, the case should be recorded on the Log for the year in which the injury or illness occurred. Where the date of injury or illness cannot be determined, the date the employee reported the symptoms or received treatment must be used. In the case in question, the injury or illness would be recorded on this year's Log because the employee cannot specify the date when the symptoms occurred.

This FAQ assumes that there was a single recordable injury or report of symptoms, which had previously occurred on a specific date but that the date could not be identified, not a series of contributing or aggravating events or exposures over time until the case meets the recording criteria. Therefore, in your example, in order to use the date the employee first reported the symptoms, that decision must be based on a knowledge that no intervening event or exposure (between 11/15/03 - 2/15/04) occurred in the work environment that was a contributing or aggravating factor. The employer needs to evaluate the employee's work duties and environment during the 11/15/03 - 2/15/04 period or any other available relevant information to make this decision. If it seems likely that a new event or exposure in the work environment was a contributing or aggravating factor, the case should be recorded on the 2004 log.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.

Sincerely,


Keith Goddard, Director
Directorate of Evaluation and Analysis