Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more ➡
Download
Standard view
Full view
of .
Add note
Save to My Library
Sync to mobile
Look up keyword
Like this
8Activity
×
0 of .
Results for:
No results containing your search query
P. 1
OSHA's Ergonomics Litigation Record: Three Strikes and It's Out, Cato Policy Analysis No. 370

OSHA's Ergonomics Litigation Record: Three Strikes and It's Out, Cato Policy Analysis No. 370

Ratings: (0)|Views: 1,362|Likes:
Published by Cato Institute
Executive Summary

In November 1999 the Occupational Safety and Health Administration proposed an ambitious "ergonomics" rule that would regulate the pace of work in American businesses, the level of staffing, rest periods, the length of shifts, and the design of equipment and entire facilities. OSHA says it will finalize the rule in 2000.

The premise of ergonomic regulation is that physical exertion is hazardous and causes "musculoskeletal disorders" such as carpal tunnel syndrome, which purportedly is caused by typing. Ergonomists advocate radical redesign of the workplace to avert these supposed "repetitive motion injuries," or "cumulative trauma disorders."

Ergonomists are not physicians--they are engineers--and their medical theories are controversial. Some of the world's leading medical researchers deny that repetitive motion causes injury. Ergonomists themselves concede fundamental flaws in their theories. They acknowledge that musculoskeletal pain has many causes other than work, and, while contending that physical exertion is hazardous, they also acknowledge that some degree of physical activity is healthful and that they cannot identify the point at which exertion ceases being good or benign and instead becomes a workplace hazard that must be regulated by the government.

Ergonomics may seem to be a bewildering topic. It certainly has bewildered OSHA. But there is a very simple way of appreciating the folly of ergonomics "science" and regulation: studying OSHA's own attempts to apply ergonomics in the three cases it litigated to judgment. In one, the 1995 Beverly Enterprises case, OSHA could not establish that lifting causes back injury. In the second, the 1998 Dayton Tire case, OSHA charged that nearly two dozen jobs in a single facility were hazardous but at trial could not establish the presence of a single hazard. OSHA's "experts" in the case repeatedly disagreed with one another's assessments of supposed job hazards; ultimately, their testimony was thrown out of court under the Supreme Court's "junk science" test. In the third case, the 1997 Pepperidge Farm case, OSHA and the world's leading ergonomists could not identify changes needed to eliminate supposed ergonomic hazards. The Occupational Safety and Health Review Commission ruled that Pepperidge Farm had a good ergonomics program; OSHA and its experts had simply not been able to tell.

If OSHA and the world's leading ergonomists cannot make sense of ergonomics, how can American business be expected to?
Executive Summary

In November 1999 the Occupational Safety and Health Administration proposed an ambitious "ergonomics" rule that would regulate the pace of work in American businesses, the level of staffing, rest periods, the length of shifts, and the design of equipment and entire facilities. OSHA says it will finalize the rule in 2000.

The premise of ergonomic regulation is that physical exertion is hazardous and causes "musculoskeletal disorders" such as carpal tunnel syndrome, which purportedly is caused by typing. Ergonomists advocate radical redesign of the workplace to avert these supposed "repetitive motion injuries," or "cumulative trauma disorders."

Ergonomists are not physicians--they are engineers--and their medical theories are controversial. Some of the world's leading medical researchers deny that repetitive motion causes injury. Ergonomists themselves concede fundamental flaws in their theories. They acknowledge that musculoskeletal pain has many causes other than work, and, while contending that physical exertion is hazardous, they also acknowledge that some degree of physical activity is healthful and that they cannot identify the point at which exertion ceases being good or benign and instead becomes a workplace hazard that must be regulated by the government.

Ergonomics may seem to be a bewildering topic. It certainly has bewildered OSHA. But there is a very simple way of appreciating the folly of ergonomics "science" and regulation: studying OSHA's own attempts to apply ergonomics in the three cases it litigated to judgment. In one, the 1995 Beverly Enterprises case, OSHA could not establish that lifting causes back injury. In the second, the 1998 Dayton Tire case, OSHA charged that nearly two dozen jobs in a single facility were hazardous but at trial could not establish the presence of a single hazard. OSHA's "experts" in the case repeatedly disagreed with one another's assessments of supposed job hazards; ultimately, their testimony was thrown out of court under the Supreme Court's "junk science" test. In the third case, the 1997 Pepperidge Farm case, OSHA and the world's leading ergonomists could not identify changes needed to eliminate supposed ergonomic hazards. The Occupational Safety and Health Review Commission ruled that Pepperidge Farm had a good ergonomics program; OSHA and its experts had simply not been able to tell.

If OSHA and the world's leading ergonomists cannot make sense of ergonomics, how can American business be expected to?

More info:

Published by: Cato Institute on Mar 26, 2009
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See More
See less

10/10/2013

pdf

text

original

 
___________________________________________________________________________________The author is a partner with the Washington, D.C., office of Gibson, Dunn & Crutcher LLP. He practices inthe area of labor and employment law and has handled numerous matters involving ergonomics.
In November 1999 the Occupational Safetyand Health Administration proposed an ambi-tious “ergonomics” rule that would regulate thepace of work in American businesses, the level of staffing, rest periods, the length of shifts, and thedesign of equipment and entire facilities. OSHAsays it will finalize the rule in 2000.The premise of ergonomic regulation is thatphysical exertion is hazardous and causes “muscu-loskeletal disorders” such as carpal tunnel syn-drome, which purportedly is caused by typing.Ergonomists advocate radical redesign of the work-place to avert these supposed “repetitive motioninjuries,” or “cumulative trauma disorders.”Ergonomists are not physicians—they are engi-neers—and their medical theories are controversial.Some of the world’s leading medical researchersdeny that repetitive motion causes injury.Ergonomists themselves concede fundamentalflaws in their theories. They acknowledge that mus-culoskeletal pain has many causes other than work,and, while contending that physical exertion is haz-ardous, they also acknowledge that some degree of physical activity is healthful and that they cannotidentify the point at which exertion ceases beinggood or benign and instead becomes a workplacehazard that must be regulated by the government.Ergonomics may seem to be a bewilderingtopic. It certainly has bewildered OSHA. Butthere is a very simple way of appreciating the follyof ergonomics “science” and regulation: studyingOSHAs own attempts to apply ergonomics in thethree cases it litigated to judgment. In one, the1995
 Beverly Enterprises
case, OSHA could notestablish that lifting causes back injury. In thesecond, the 1998
 Dayton Tire
case, OSHA chargedthat nearly two dozen jobs in a single facility werehazardous but at trial could not establish thepresence of a single hazard. OSHA’s “experts” inthe case repeatedly disagreed with one another’sassessments of supposed job hazards; ultimately,their testimony was thrown out of court underthe Supreme Court’s “junk science” test. In thethird case, the 1997
Pepperidge Farm
case, OSHAand the world’s leading ergonomists could notidentify changes needed to eliminate supposedergonomic hazards. The Occupational Safety andHealth Review Commission ruled thatPepperidge Farm had a good ergonomics pro-gram; OSHA and its experts had simply not beenable to tell.If OSHA and the world’s leading ergonomistscannot make sense of ergonomics, how canAmerican business be expected to?
OSHA’s Ergonomics Litigation Record 
Three Strikes and It’s Out 
by Eugene Scalia
Executive Summary
No. 370May 15, 2000
 
Ergonomic Theoryand Its Pitfalls
Ergonomics, Ergonomists, and Their Aims
The dictionary definition of ergonomics is“an applied science concerned with designingand arranging things people use so that thepeople and things interact most efficientlyand safely.”
1
Ergonomics is synonymous with“human factors engineering,” and ergono-mists—to the extent they have any specializededucationare engineers. Ergonomics’ cur-rent prominence, however, comes from itsassociation with a medical theory—the claimthat repetitive motion and other demandingphysical labor cause “repetitive motioninjuries” (RMIs), also called “cumulative trau-ma disorders” or “repetitive strain injuries.”Proper “ergonomic” design of the workplace isthought to avert these ailments.It actually is an understatement to say thatergonomists consider demanding physicallabor the cause of RMIs. The tasks they con-sider hazardous include activities that are notdemanding at all: “[u]sing the hands to wringout a mop,” for instance, and “[h]olding a jarin one hand while attempting to remove thelid with the other hand” are both identified asoccupational hazards in OSHA’s proposedrule.
2
“Awkward postures” and “cold tempera-tures” also are ergonomic “risk factors.”
3
Evenmore confusing, too little activity, as well astoo much, is said to be ergonomically danger-ous. Thus, OSHA’s proposed rule warns notonly against “[b]ending or twisting” but alsoagainst “maintaining [the] same position orposture” and “[s]itting for a long time”; itwarns against gloves that are “too large ortoo small” and—not unreasonablyagainst“[u]sing hand as a hammer.”
4
OSHA considersit per se hazardous to use hands for whatthey’re made for“handling.”
5
Given those premises, it is no surprise thatthe research arm of OSHAthe NationalInstitute for Occupational Safety and Health(NIOSH)—believes that ergonomic hazardsexist in all industries.
6
Ergonomists’ proposed solutions followdirectly from their premises and are stagger-ing in their consequences. They include slow-ing the pace of work so that employeesengage in less repetitive motion and increas-ing staffing and rest periods so that, again,each employee works less hard. Since liftingheavy objects is deemed hazardous, ergono-mists propose reducing the weight of objectsto be lifted and installing lifting equipmentto lessen the demands on workers. “Awkwardpostures” must be addressed by redesigningtools or entire workstations.In the absence of an ergonomics rule,OSHA has prosecuted what it considersergonomic hazards under a provision of theOccupational Safety and Health Act knownas the “general duty clause.” The clause pro-hibits employers from exposing employees to“recognized hazards that are . . . likely tocause death or serious physical harm.”
7
OSHA settled or dismissed all but three of itsgeneral duty clause ergonomics cases, but theremedies it sought reflect the sweepingchanges that OSHA and ergonomists have inmind. In one case, OSHA directed a luggagemanufacturer to “reduce the number of jobtasks” in order to “increase rest time.” OSHAalso ordered the company to “redesignassembly.” In other cases, the agencyinstructed a tool manufacturer to “redesign”the job and sought to force a shipping com-pany to reduce by half the weight of packagesit accepted for delivery. Such measures gostraight to a company’s bottom line.Individual businesses have estimated thatergonomic measures OSHA has soughtwould cost them hundreds of millions of dollars annually.
8
OSHA’s proposed rule identifies no spe-cific changes employers must make; instead,it identifies a series of steps they must followif “work-related musculoskeletal disorders”occur. Employers’ obligations under the ruleare triggered by “signs” and “symptoms” of musculoskeletal disorders, which OSHAdefines to include “pain,” “numbness,” and“tingling.” When those symptoms occur,employers are to examine the employee’s job
2
Individual busi-nesses haveestimated thatergonomic mea-sures OSHA hassought would costthem hundreds of millions of dollars annually.
 
to determine whether it is “reasonably likelyto be ergonomically hazardous. If it is, theemployer is to implement the kind of abate-ment measures described above—reduceassembly line speed, redesign equipment,and so on—until the hazard is gone or no fur-ther changes are feasible. The rule also pro-vides for an “incremental abatement processunder which an employer may make some job adjustments, see whether the employee isfeeling better, and, if not, continue makingadjustments until the employee’s conditionimproves. An astonishing provision of therule would require employers in some cir-cumstances to give employees up to sixmonths’ leave at 90 percent of their pay if their MSD symptoms (e.g., “tingling”) do notgo away. Or employees could demand to beplaced in light-duty jobs under the provision,in a manner similar to the practice under theAmericans with Disabilities Act but withfewer constraints.
9
The Problems of Ergonomics
Given the enormous burdens of ergonom-ic regulation, one would expect compellingscientific evidence to underlie OSHA’s pro-posal. But the “science” of ergonomics isnotoriously doubt-ridden and controversial.A first and most basic problem withergonomics is that leading physicians andmedical organizations dispute that RMIsactually occur. These physicians do not denythat people experience pain and discomfortin their backs, limbs, and other parts of themusculoskeletal system. On the contrary,musculoskeletal discomfort is ubiquitous.Fifty percent of Americans experience back pain every year, for instance.
10
What thephysicians dispute is that physical exertion isthe cause of musculoskeletal injury or illness.Carpal tunnel syndrome is an affliction of the hand and wrist that ergonomists claim iscaused by typing, for instance, yet theAmerican Society for Surgery of the Handopposes ergonomic regulation. It explains:“[T]he current medical literature does notprovide the information necessary to estab-lish a causal relationship between specificwork activities and the development of well-recognized disease entities.”
11
Similarly, theworld’s leading experts on back problemsdeny that job tasks are an important cause of back pain.
12
A second basic problem with ergonomicsis that, even accepting its premises, ergono-mists admit great difficulty diagnosing anRMI in any given instance. As noted, muscu-loskeletal discomfort is ubiquitous, andergonomists concede it has many causesother than work: it occurs (and dissipates)naturally and also is correlated with aging,obesity, and genetic predisposition, amongother things.
13
Ergonomists’ difficultiesidentifying supposed RMIs are exacerbatedby the fact that, whereas physicians typicallyrely on objective criteria to make diagnoses,ergonomists rely on subjective symptoms. Inone leading study by NIOSH, musculoskele-tal conditions were “diagnosed” by jerkingworkershands and arms around and askingwhether it hurt a lot or just a little bit.
14
OSHA’s proposed rule treats “fatigue” as syn-onymous with injury.
15
Importantly, if an ergonomist fails todetermine the cause of a worker’s muscu-loskeletal disorder, then the disorder cannotbe classified as an RMI, since the term “repet-itive motion injury” indicates a conclusion asto cause.Ergonomists’ third great difficulty is iden-tifying effective ergonomic solutions. Asleading ergonomist Stover Snook puts it, “Itis difficult to try and prevent . . . back injurieswhen no one really knows what causesthem.”
16
NIOSH sensibly states that the firststep in determining whether a job isergonomically hazardous is comparing “jobdemands . . . to known human capacities.”Yet the agency confesses in the same docu-ment, “For most biomechanical factors, thelimits of human capacities have not beendefined.”
17
Scientists call this an inability toidentify “dose-response relationships”; ergono-mists do not know how much repetition, force,or weight is too much and therefore do notknow the level to which those things shouldbe reduced to avert supposed ergonomic ail-
3
Whereas physi-cians typicallyrely on objectivecriteria to makediagnoses,ergonomists relyon subjectivesymptoms.

Activity (8)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
chindypooh liked this
sawkariqbal liked this
rjoona liked this
nashidin liked this

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->