September 13, 2018

Daniel Clapper
9472 Trafalgar Dr., SE
Alto, Ml 49302

Dear Mr. Clapper:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA) regarding the recordkeeping regulation contained in 29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses. You request clarification of OSHA’s injury and illness recordkeeping requirements when an over-the-counter brace or splint is used to treat a work-related injury.

In your letter, you state there is confusion concerning Section 1904.7(b)(5)(ii)(F) and the use of braces with rigid stays and splints when fabricated to fit injured employees. You also request clarification regarding the use of over-the-counter braces with metal stays which can be easily moved to make the device “semi-rigid.”

Question:
An employee injures his wrist at work and, following evaluation from a licensed healthcare professional on-site, is provided with an over-the-counter brace/splint. Am I correct regarding the following options?

• Option 1: If the rigid or semi-rigid stays are removed from the over-the-counter brace/splint, would this be an OSHA recordable injury

• Option 2: If the rigid or semi-rigid stays are not removed from the over-the-counter brace/splint, would this be an OSHA recordable injury?

Response:
Section 1904.7(a) of OSHA's recordkeeping regulation requires employers to record work-related injuries and illnesses that result in medical treatment beyond first aid. Section 1904.7(b)(5)(ii)(F) states the use of any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc., is considered first aid for OSHA recordkeeping purposes. Section 1904.7(b)(5)(ii)(F) further states that orthopedic devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes. If the brace is rigid and is being used to immobilize the injured body part, then this is considered medical treatment and recordable. Otherwise, using any non-rigid means of support is considered first aid and not recordable.

Furthermore, OSHA does not use the term “semi-rigid” because the purpose of an orthopedic device is to immobilize the body part. For OSHA recordkeeping purposes, a splint will always be considered medical treatment, even if the “splint” is fabricated to fit the injured employee. Therefore, if an employee has a work-related injury that results in the use of a “splint,” the case will always be recordable.

The two options described in your letter are both recordable cases. The employee sustained a work-related injury and a licensed healthcare professional recommended a brace/splint to treat the injury. Again, a brace/splint is an orthopedic device used to immobilize the injured body part, and therefore is medical treatment beyond first aid. Under OSHA’s recordkeeping system, if an employer or physician or licensed health care provider (PLHCP) recommends that an employee wear a brace/splint to treat a work related injury, then the case is recordable as medical treatment. See, OSHA’s November 28, 2017 letter of interpretation to Raymond J. Skwarek: https://www.osha.gov/laws-regs/standardinterpretations/2017-11-28

Under Option 1 described in you letter, removing all of the rigid stays from the brace would still be considered medical treatment and recordable because a recommendation was made by the licensed healthcare professional that the injured worker needed a brace/splint. Otherwise, the licensed healthcare professional would have recommended the use of any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc., which is considered first aid for OSHA recordkeeping purposes. Accordingly, in order for the situation described in Option1 to be considered first aid, the licensed health care professional would have needed to recommend using the brace/splint without a rigid stay to treat the injury.

With regard to Option 2, leaving the rigid stays in the brace would also be considered medical treatment and recordable because the licensed healthcare professional recommended a brace / splint to immobilize the injured body part.

OSHA addressed the issue of orthopedic devices in the preamble to the January 19, 2001 final rule revising the recordkeeping regulation.

“OSHA has included two items related to orthopedic devices in the final definition of first aid. Item F includes ‘‘[u]sing any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes).’’ OSHA has included more examples of the devices (wraps and non-rigid back belts) to help make the definition clearer. However, OSHA believes that the use of orthopedic devices such as splints or casts should be considered medical treatment and not first aid. They are typically prescribed by licensed health care professionals for long term use, are typically used for serious injuries and illnesses, and are beyond the everyday definition of first aid. OSHA believes that it would be inappropriate to rely on ‘‘restricted activity,’’ as recommended by GE, because there may be situations where orthopedic devices are prescribed, the worker is not placed on restrictions, but an injury or illness warranting recording has occurred.”
[See, 66 Fed. Reg. 5915 at 5990].

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. Also, from time to time we update our guidance in responses to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,

Amanda L. Edens, Director
Directorate of Technical Support and Emergency Management