May 21, 2010

Dr. Betsy Buehrer
3M Corporate Occupational Medicine
3M Center
Building 220-6W-08
St. Paul, Minnesota 55133-3428

Mr. Michael Nash
3M General Counsel
3M Center
P.O. Box 33428
St. Paul Minnesota 55133-3428

Dear Dr. Buehrer and Mr. Nash,

Thank you for your February 18, 2010 letter to the Occupational Safety and Health Administration (OSHA) regarding OSHA's recordkeeping regulation contained in 29 CFR Part 1904 - Recordkeeping and Reporting Occupational Injuries and Illnesses. In an effort to provide you with prompt and accurate responses, we developed and continue to refine a set of Frequently Asked Questions (FAQ), in addition to maintaining a log of Letters of Interpretation (LOI) on the OSHA Recordkeeping we site.

Your letter requests an interpretation relating to exercises recommended for a short period of time by an on-site health care professional when an employee is experiencing minor pain that has been determined to be work-related. Specifically, you ask if exercise is considered medical treatment as defined in OSHA's recordkeeping regulations.

If a physician or licensed health care professional recommends therapeutic exercise in response to a work-related injury or illness, the case is considered to involve medical treatment and the case is recordable.

OSHA addressed the topic of therapeutic exercise in the preamble to the final rule for recording and reporting occupational injuries and illnesses (FR 66:13, page 5992). OSHA stated that it considers therapeutic exercise as a form of physical therapy and intentionally did not include it as a first aid treatment under 1904.7(b)(5)(ii). 1904.7(b)(5)(ii)(M) states that physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes and are not considered first aid. 1904.7(b)(5)(ii) states that the treatments included under 1904.7(b)(5)(ii) is a comprehensive list of first aid treatments. Any treatment not included on this list is not considered first aid for OSHA recordkeeping purposes.

The fact that physical therapy treatment, including exercise, is normally provided over an extended period of time and is administered by licensed personnel with advanced training was taken into account during the rulemaking process to determine the composition of the first aid list. However, in implementation of the final requirements, the number of treatments rendered is not a factor considered in distinguishing between medical treatment and first aid. The only factor to consider is whether the specific type of treatment is included on the first aid list or not. This concept holds true for treatments such as physical therapy, chiropractic treatment, in the administration of prescription medication. While all of these treatments generally involve multiple applications or doses, any single application is considered medical treatment beyond first aid for recordkeeping purposes.

Frequently Asked Question (FAQ) 7-19 states a case is not considered recordable if (1) the employee experiences minor musculoskeletal discomfort, and (2) a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and (3) the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing. This exception is very narrow in scope and only applies when all three conditions are met. This FAQ specifically states the case becomes recordable if it meets any of the general recording criteria contained in section 1904.7, such as medical treatment beyond first aid. Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case.

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 out enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. to keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,

Keith Goddard, Director
Directorate of Evaluation and Analysis