United States House of Representatives

House Education and Labor Committee Hearing

"Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses"

June 19, 2008

Statement of Robert K. McLellan, MD, MPH, FACOEM

Representing the American College of Occupational and Environmental
Medicine

Good Morning. I am Robert McLellan, an occupational medicine physician
and the Immediate Past President of the American College of Occupational
and Environmental Medicine, known as ACOEM. I serve as the Chief of the
Section of Occupational and Environmental Medicine at
Dartmouth-Hitchcock Medical Center and as Associate Professor of
Medicine and Community and Family Medicine at Dartmouth Medical School.
ACOEM represents more than 5,000 physicians and other health care
professionals specializing in the field of occupational and
environmental medicine. Founded in 1916, ACOEM is the nation\'s largest
medical society dedicated to promoting the health of workers through
preventive medicine, clinical care, disability management, research, and
education.

ACOEM welcomes this opportunity to provide our organization's
perspective on OSHA recordkeeping. Our interest in this subject stems
from our role as physicians with a dual mission; we provide direct care
to workers in the clinic and we serve as public health officers for
employed populations. As clinicians, we have an obligation to provide
the best, evidence-based care to workers. As a specialty of preventive
medicine, we also have a responsibility to use epidemiological tools
such as the OSHA log to design population-based preventive
interventions.

In my position as President of ACOEM, I had the opportunity over the
last year to tour the country and visit with occupational physicians and
allied health providers working in a variety of settings. A concern
reported to me during these visits was that some employers exerted
pressure on occupational physicians to alter treatment and/or return to
work statements in ways likely to minimize OSHA recordability. Based on
the frequency of this report, I suggested that ACOEM convene a special
session on OSHA recordkeeping at ACOEM's annual meeting known as the
American Occupational Health Conference, this year held in New York
City, In addition to this session, ACOEM recently established a forum on
its website to gather additional perspectives from our members on their
experience with OSHA recordkeeping. In the coming months, we look
forward to participating in a survey of our membership to be conducted
by the Government Accountability Office, at the request of Chairman
Miller and Representative Woolsey, and Senators Kennedy and Murray, in
an exploration of the issue of reporting of work-related injuries and
illnesses. We expect to publish a position paper in the upcoming months,
but not before our College has had the opportunity to more fully explore
options as to how best to further the goal of valid and reliable
recordkeeping that supports preventive health and evidence-based medical
care. My testimony today therefore represents the results of preliminary
exploration of this issue by our College.

From the public health perspective, the OSHA Log was created as *a* tool
to describe the burden of occupational injuries and illnesses on
society. This data drives occupational health and safety resources. It
is also used to target interventions to address industries and processes
that carry the greatest risk. When followed over time, the log can help
evaluate the effectiveness of these interventions. However, the OSHA log
can only support these functions to the extent that it is valid and
reliably maintained. Most importantly, society's interest in preventing
work-related injuries and illnesses is foiled when our picture of the
true burden of work-related injuries and illnesses is distorted.

Limitations of the OSHA log in serving these basic public health
functions have long been recognized. Several peer-reviewed articles in
the scientific literature have concluded that for many reasons, the
annual BLS survey of employer logs results in substantial
under-reporting of the full extent of work-related injuries and
particularly illnesses (Azaroff, Levenstein, et al 2002, Boden and
Ozonoff 2008, Rosenman, Kalush et al, 2006). With reference to other
data bases and changes in the recordkeeping rules (Friedman and Forst
2007), some researchers have questioned whether the apparent decline in
injuries and illnesses is a true reflection of reality. These
conclusions do not mean that most employers are not in good faith doing
their best to accurately comply with the recordkeeping rule. Rather,
multiple factors are at play.

The OSHA log was never designed to serve as a single, comprehensive
metric of occupational health and safety at either the national or
employer level. By prescription of the OSH Act itself, the recordkeeping
standard has always excluded first aid cases. As well, several sectors
of workers are excluded; a problem which is growing with the burgeoning
number of contingent workers, a workforce estimated in a recent article
in the Journal of the American Medical Association as representing
nearly a third of the American workforce (Cummings and Kriess 2008). The
OSH Act also did not supersede workers' compensation law, which often
defines compensable injuries and illnesses somewhat differently than the
OSHA recordkeeping standard. In fact, since the turn of this century,
the Council of State and Territorial Epidemiologists has promoted the
use of a suite of 19 different occupational health data bases in an
effort to capture a more valid picture of work related injuries and
illnesses (Council of State and Territorial Epidemiologists 2008).

The OSHA log has grown to serve many purposes beyond that for which it
was designed. When a single metric becomes the focus of safety efforts,
it can become distorted by a wide variety of pressures. For example,
OSHA's preamble to the recordkeeping rule cites a stakeholder, who
commented that "Today, many owners are selecting contractors on the
basis of the contractors' rates for lost work days and total
recordables." At its best, this concentration results in intensive
efforts to improve safety. At its worst, however, the spotlight on the
log produces efforts to make the log look good, rather than placing
attention on reducing risks that lead to injury and illness. ACOEM
members report that various incentive programs to produce a "good" OSHA
log can distract safety programs from the primary goal of prevention.
When workers or managers are promised a valuable prize to avoid
recordable injuries, they may pressure each other to under-report. One
ACOEM member reported that a worker came directly from the job to the
clinic with a very recent, significant laceration. In contrast to
obvious appearances however, the worker reported that the injury had
occurred the night before at home and in passing stated that to claim
otherwise would risk that his fellow workers would lose a steak dinner.
In another case, the entire plant was told that if they had a recordable
injury, the whole workforce would lose its bonus. When managers' bonuses
are dependent on a "clean" log, they may make efforts to reduce
reporting, whether it be by discouraging reporting by employees,
shifting medical care costs to group health insurance or inappropriately
intruding on the doctor-patient relationship.

Although physicians and providers do not have a regulatory obligation
under the standard, we have an ethical obligation to correctly diagnose,
report, and treat injuries. The rule allows business to use a physician
of its choice in the final determination of causation, treatment, and
work restrictions. At its best, this provision allows employers to
select knowledgeable physicians. At its worst, this provision can lead
employers to select physicians not for their competence, but for their
reliability in declaring that an injury is not work related.

**ACOEM Members' Perspectives**

ACOEM has not conducted its own systematic research. The following
comments represent perspectives and anecdotes collected from our
members.

-   Some ACOEM members have observed a wide variability in employers'
    understanding and application of the recordkeeping standard.

    -   Many employers make every effort to comply assiduously to the
        letter of the standard. In these settings, reporting is
        encouraged and the general rule is to "treat the patient, not
        the log." The log is used to stimulate interventions that
        improve safety. Unfortunately, in some cases, this careful
        compliance can result in the industry being targeted for OSHA
        inspection because of incidence and severity rates that *appear*
        above comparable businesses.

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    -   Some employers, in the spirit of training, ask physicians if
        they can make minor alterations to their treatment, if medical
        outcomes are not compromised, to take advantage of regulatory
        distinctions between first aid and medical treatment.

    -   Some, particularly smaller employers, find the rule inordinately
        complex and confusing, and complete the log incorrectly through
        ignorance of the rules.

    -   Some employers work closely with in-house or outsourced
        physicians to coordinate administrative functions of
        recordkeeping with the medical providers who best understand the
        circumstances of the worker's health problem. In other cases, an
        employer's recordkeeper has little contact with knowledgeable
        providers.

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-   Some of our members point out that the OSHA log is a lagging
    indicator of safety; no matter how accurate, it counts past events.
    These members encourage employers with whom they work to use a broad
    set of metrics to evaluate and promote the health and safety of a
    workplace, such as first aid and near misses, workers compensation
    data, and hazard assessments. Noting that any injury, no matter how
    minor is an indicator of a hazard, several members would rather
    declare all first aid incidents as "recordable." They reason that
    efforts should be devoted to prevention rather than arguing about
    recordkeeping rules.

-   Some of our members complain that distinctions that the standard
    make between first aid and medical treatment are nonsensical and can
    drive bad medical practice.

    -   For example, using a cotton swab to remove a foreign body from
        the eye is considered first aid. Unfortunately, use of a swab
        may damage the cornea. The appropriate tool for the same purpose
        is a needle like tool, called an eye spud, used by a trained
        health care provider. Use of this tool, however, is considered
        medical treatment.

    -   The difference between a laceration of only a few millimeters,
        for which a bandaid is sufficient, and a laceration of a few
        centimeters needing sutures is luck, not safety.

-   Some members indicate that several parties including some workers,
    employers, and insurance companies try to influence occupational
    medical treatment in ways that may result in medical harm to a
    worker or in other cases, excessive costs to employers. We do not
    know how extensive this problem is, but anecdotes are common enough
    to be a concern. Let me note parenthetically that it is clear some
    employees may demand inappropriate time off or medical treatment and
    that some physicians may comply with those requests, in this case
    resulting in over-reporting rather than under-reporting. However,
    since the focus of this hearing is on under-reporting, we will focus
    our testimony on anecdotal evidence from ACOEM members illustrating
    how some employers, supervisors or safety professionals act in ways
    that are driven primarily for the purpose of minimizing OSHA
    recordability.

    -   Some employers willfully misinterpret the "routine functions"
        criteria of OSHA to define cases as not recordable. Some
        employers have asked clinicians to write "Work as tolerated" on
        the Return to Work form in order to manage the restrictions
        themselves and avoid a paper trail of recordability, for
        example.

    -   One member reported an instance where a safety team at a site
        without an on-site medical office, inappropriately controlled
        access to health care providers in the context of plant
        incentive programs that rewarded the absence of recordable
        injuries. She intervened when she learned that after a worker
        was exposed to vinyl chloride, the safety team had applied a
        hazardous chemical (potash) to the worker's skin since they had
        read that the chemical could be used to neutralize environmental
        spills.

    -   Some employers send supervisors to the clinic with the
        expectation that they accompany the worker into the exam room to
        contribute to the evaluation of an injured worker.

    -   Some employers send messages to be attached to medical charts
        directing the physician to opine that the injury was not
        work-related.

    -   Some employers ask occupational health professionals to
        prescribe "exercise" instead of physical therapy or to employ
        athletic trainers instead of therapists to minimize
        recordability.

    -   Some employers have been known to question the clinician's
        decision to sew up a wound or they have requested Steri-Strips
        (a type of bandaid) in order to prevent recordability.

    -   Occupational health professionals are asked to review treatment
        by other clinicians to determine if the prescription was "really
        necessary" in an effort to avoid recordability, clearly in
        violation of OSHA's own interpretations.

    -   Some of our members report that employers have diverted injured
        workers to other physicians in a community who are apparently
        more willing to comply with an employer's directives to alter
        care to minimize recordability.

**Conclusions and Recommendations**

Let me conclude by saying that we believe most physicians and employers
are trying to do the right thing when it comes to OSHA recordkeeping.
But we find anecdotal examples of distorted reporting troubling,
suggesting a process and a system in need of review because of the
potential for causing both medical harm and flawed statistical results.

No single party is to blame for under-reporting: As often is the case,
it is a complicated mix of pressures that range from workplace practices
to health provider policies and government regulations. ACOEM has
developed strong relationships with multiple constituencies, including
workers, employers and regulators, and has partnered with NIOSH to
further the protection of the workforce. It is not our intention to
point fingers, but rather to seek solutions that are based on doing
what's right for the patient and that are grounded in good science and
best practices.

Our advocacy on this issue is quite straightforward:

-   **Number one**: Physicians must always do the right thing for the
    patient. Although physicians and providers do not have a [regulatory
    obligation]{.underline} under the standard, they do have an [ethical
    obligation]{.underline} to correctly diagnose, report, and treat
    injuries. This obligation also extends to avoiding unnecessary
    treatment and disability. These principles are built into our Code
    of Ethics and adhering to them must always remain as a key goal.
    This will be our overriding priority in all of our discussions of
    the issue.

-   **Number two**: We believe that OSHA must encourage a better
    understanding of the requirements contained in the recordkeeping
    standard and the various interpretations and uses surrounding the
    standard. Providing employers with electronic decision-making tools
    that incorporate rule interpretations, for example, could reduce the
    variability in recordkeeping.

-   **Number three**: It may be time to update the current OSHA
    recordkeeping standard and its enforcement to minimize
    under-reporting.

-   **Number four**: OSHA might undertake a special emphasis program to
    increase the number of medical records reviewed as part of OSHA's
    Audit and Verification Program of Occupational Injury and Illness
    Records (CPL 02-00-138).

-   **Number five**: ACOEM supports efforts to broaden the suite of
    occupational health indicators used at a national, state, and
    facility level in order to improve the quality of the data necessary
    to prevent work related injuries and illnesses.

> .

References

Azaroff, L. S., C. Levenstein, et al. (2002). \"Occupational injury and
illness surveillance: conceptual filters explain underreporting.\"
[American Journal of Public Health]{.underline} **92**(9): 1421-1429.

Boden, L. I. and A. Ozonoff (2008). \"Capture-recapture estimates of
nonfatal workplace injuries and illnesses.\" [Annals of
Epidemiology]{.underline} **in press**.

Council of State and Territorial Epidemiologists (2008). Introduction
and Guide to the Data Tables for Occupational Health Indicators.
Available at
<http://www.cste.org/dnn/ProgramsandActivities/OccupationalHealth/OccupationalHealthIndicators/tabid/85/Default.aspx>

Cummings, K. J. and K. Kreiss (2008). \"Contingent workers and
contingent health: Risks of a modern economy.\" [Journal of the American
Medical Association]{.underline} **299**(4): 448-453.

Friedman, L. S. and L. Forst (2007). \"The impact of OSHA recordkeeping
regulation changes on occupational injury and illness trends in the US:
a time-series analysis.\" [Occupational and Environmental
Medicine]{.underline} **64**: 454-460.

Rosenman, K. D., A. Kalush, et al. (2006). \"How much work-related
injury and illness is missed by the current national surveillance
system?\" [Journal of Occupational and Environmental
Medicine]{.underline} **48**(4): 357-365.