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123

of opinion we listened to. I would really like to be able to put a pro-
posal forward and have public hearings and the very structured
process. I hope the Congress will permit us to do that.

Mr. McINTosH. I have no further questions.

Mr. Peterson.

Mr. PETERSON. Just briefly, I want to clear up one other mis-
conception. I’ve heard a couple people say that part of what you
were doing, you were studying—having truck drivers move the
steering wheel and studying if this was going to cause them to be
injured or not. Did that ever happen? Are you aware of that?

ir. DEAR. I’m not aware. I can certainly check to see if—

Mr. PETERSON. I’ve heard two or three people say that that’s part
of what you were doing.

Mr. DEAR. Well, I have lots of scientific studies here that we
have used. There may be one involved with trucking. Congressman,
I'm not personally aware.

Mr. McINTosH. Mr. Dear, that was one comment I wanted to
make. You mentioned you weren't personally interested that much
in paper clips but in poultry factories and other places where you
think there are real problems. One of the problems is, we've got
this rule—well, it’s not a rule yet, but it’s a draft proposal that the
staff has been doing—that addresses things like that, and it’s 600
pages, and it’s all-encompassing.

‘ou. may want to go back and consider, are there ways we can
target the ones that you personally are concerned about, or pre-
sumably that you and others have identified are very high-risk
greas, and avoid some of the overreach that seems to be going on

ere?

In the manual on handling, the five points puts you _into the
warning system, and yet there were a couple of things that were
six points automatically. You know, certain ways of lifting 28-

und or more packages would put you into that. So there’s a very
Proad reach in some of the draft that is going forward, and that
is what is triggering a lot of the concern in that.

Mr. Dear. Let me make clear, there are 26 pages of regulatory
text in the 600 pages. There are 300 pages of nonmandatory advice,
“how to,” free, you know, so you don’t need to hire an expert. The
rest of that is information which is required under current statute
for demonstration of significant risk, the risk assessment, the eco-
nomic analysis, you know.

If some of the legislation you have been working on passes, we
will probably have a couple thousand pages of that explanatory—
which I’m not sure is going to add value in terms of actually im-
proving the decisionmaking.

Mr. McINTosH. Sometimes the advice is very important in this
process.

Mr. Dear. But yor policy question, are there ways of skinning
this cat differently? I mean, you know, that’s one of the things
we're looking at.

Mr. McINTosH. Thank you for coming. I have no further ques-
tions. Since everybody else is gone, I’m going to assume they have
no further questions.

The committee will stand in recess while we take this vote. We
will let this first panel go and come back to the second panel.


25

partnerships, sensible and appropriate regulatory approaches and
a sensible enforcement/litigation strategy.

In fact, many employers have recognized the problems and
implemented successful solutions. OSHA has met with many
companies, such as AT&T, Dupont, and Hewlett-Packard, that have
voluntarily implemented ergonomics programs. The agency has also
collected dozens of success stories from companies which report
significant benefits from their programs. Savings in workers’
compensation costs are generally a large part of the measurable
benefits. In addition, such employers report increased
productivity, decreased absenteeism and turnover, and increased
employee morale. We have provided for the record of this hearing
a summary of a number of these success stories.

There seems to be a misconception that ergonomics programs
always entail complete redesign of the workplace or the way the
work is performed. In fact, many of the effective control
measures implemented by employers are simple and cheap. For
example, the employee may simply need a rubber mat to stand on
while working. Or a rigid chair may be replaced by one that is
adjustable. Complete redesign of the entire work process is
rarely required to achieve significant reductions in risks.
Employees familiar with the process are often best able to both

define the cause of the problem and suggest simple solutions.


154

of human suffering, increased productivity and bottom line
enhancement makes ergonomics a smart team investment.

I would like to thank the members of this Congressional
Subcommittee for inviting me to testify on this important
occupational safety and health issue, and I would be happy to try to
answer any of your questions.


149

I am here today to address the current scientific and medical
understanding regarding the prevention and management of workplace
related cumulative trauma disorders, especially as they relate to
the methodology used by OSHA. Any regulation should have a proper
scientific basis, this is core to any congressional regulatory
reforn effort.

First I would like to state that ergonomics is and should be
part of any business’ occupational safety and health approach.
Ergonomics is simply the study of work in relation to the body.

I have consulted with many businesses faced with musculoskeletal
disorder problems and have had successes and failures in attempting
to solve the myriad aspects of their ergonomic concerns. These
companies have shown genuine concern regarding the safety and health
of their employees and are also aware of the tremendous costs they
face from musculoskeletal problems in terms of workers’
compensation, loss of productivity, and human suffering. ‘The
Coalition and its members have expressed continued and strong
support for ergonomics programs that address the specific concerns
of the individual workplace and critical research into the causes
and effects of what has been termed cumulative trauma disorders
(CTDs). They stand ready to be integral partners with all
interested parties for appropriate discussion, planning and
development of proper approaches addressing the prevention and
management of cumulative trauma disorders.

OBHA’S DRAFT PROPOSED STANDARD: SCIENTIFIC AND MEDICAL ISSUES

First, I would like to comment that the ergonomics field is a
multidisciplinary study of complex exposure, effects, engineering,
diagnosis, treatment and rehabilitation. This complexity and the
difficulty in determining how key risk factors affect
musculoskeletal disorders is essential to understanding why, for
example, the "bad back” has plagued the human race since we began to
walk erect; and that as of today, we are still coming to grips with
what causes them, why so many of us get back pain and effective ways
to manage low back pain.

While it is painfully obvious that musculoskeletal problems are
impacted on and by the workplace, the present state-of-the-art
knowledge does not provide a sound scientific and medical basis to
promulgate a broad, far-reaching standard as proposed by OSHA. From
a scientific standpoint OSHA, in developing occupational health
regulations, must be able to (1) determine a specific hazard (2)
quantify the risk (3) select exposure levels which will prevent the
hazard and (4) provide for effective exposure reduction and control.
It is my opinion that OSHA has not satisfied these criteria simply
because the state-of-the-art does not provide the necessary answers.
While the scientific community continues to perform much needed
research into cause, dose, non-workplace causation factors and
successful cost-effective exposure control strategies, the critical
answers necessary for comprehensive regulation are simply not

2


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, JR., Pennsylvania, Chairman

BENJAMIN A. GILMAN, New York ‘CARDISS COLLINS, Mtinois

DAN BURTON, Indiana HENRY A. WAXMAN, California

J. DENNIS HASTERT, Illinois ‘TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, JR., West Virgini
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
ILEANA ROS-LEHTINEN, Florida JOHN M. SPRATT, JR., South Carolina

WILLIAM H. ZELIFF, JR., New Hampshire = LOUISE MCINTOSH SLAUGHTER, New

JOHN M. McHUGH, New York York

STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvas
JOHN L. MICA, Florida GARY A. CONDIT, Californi

PETER BLUTE, Massachusetts COLLIN C. PETERSON, Minnesota
THOMAS M. DAVIS, Virginia KAREN L. THURMAN, Florida
DAVID M. McINTOSH, Indiana CAROLYN B. MALONEY, New York
JON D. FOX, Pennsylvania THOMAS M. BARRETT, Wisconsin
RANDY TATE, Washington GENE TAYLOR, Mississippi

DICK CHRYSLER, Michigan BARBARA-ROSE COLLINS, Michigan
GIL GUTKNECHT, Minnesota ELEANOR HOLMES NORTON, District of
MARK E. SOUDER, Indiana Columbia

WILLIAM J. MARTINI, New Jersey JAMES P. MORAN, Virginia

JOE SCARBOROUGH, Florida GENE GREEN, Texas

JOHN B. SHADEGG, Arizona CARRIE P. MEEK, Florida

MICHAEL PATRICK FLANAGAN, Illinois CHAKA FATTAH, Pennsylvania
CHARLES F. BASS, New Hampshire

STEVEN C. LATOURETTE, Ohio BERNARD SANDERS, Vermont
MARSHALL “MARK” SANFORD, South (Independent)
Carolina

ROBERT L. EHRLICH, JR., Maryland
JAMES L. CLARKE, Stoff Director
KEVIN SABO, General Counsel
Junin McCoy, Chief Clerk
Bup MYERS, Minority Staff Director

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND
REGULATORY AFFAIRS

DAVID M. McINTOSH, Indiana, Chairman

JON D. FOX, Pennsylvania COLLIN C. PETERSON, Minnesota
J. DENNIS HASTERT, Illinois HENRY A. WAXMAN, California
JOHN M. McHUGH, New York JOHN M. SPRATT, JR., South Carolina
RANDY TATE, Washington LOUISE McINTOSH SLAUGHTER, New
GIL GUTKNECHT, Minnesota York
JOE SCARBOROUGH, Florida PAUL E. KANJORSKI, Pennsylvania
JOHN B. SHADEGG, Arizona GARY A. CONDIT, California
ROBERT L. EHRLICH, Jr., Maryland CARRIE P. MEEK, Florida

EX OFFicio
WILLIAM F. CLINGER, JR., Pennsylvania CARDISS COLLINS, Mlincis

‘MILDRED WEBBER, Sta/f Director

KAREN BARNES, Professional Staff Member
David WHITE, Clerk
KEVIN Davis, Minority Professional Staff

an


119

can control, like, for example, their own weight, and whether or not.
that could affect their ability to perform a job safely?

Mr. Dear. No, not in the sense that I believe your question is
intended. Again, the obligation for the provision for a workplace
which is free of recognized hazards that could cause or are likely
to cause serious injury is the employer’s. Employees are responsible
for following good work practices, but the obligation is on the em-
ployer. So that’s a decision that belongs to the employer.

Mr. SHADEGG. I guess, given that—what is it—30 percent of all
Americans, or maybe 40 percent, do, in fact, have a weight prob-
lem, when you try to create a standard, do you look at that? How
do you factor that in, in creating a standard, a fall standard for a
construction site, for example?

Mr. Deak. Well, in that sense, if you are talking about fall arrest
devices, you are talking about devices that are sufficienth robust,
from an engineering standpoint, to withstand the weight of the fall-
ing Person. I mean, there is actually detailed information to that.

ut let’s take it more broadly.

Mr. SHADEGG. I guess my point is, in your drawing a standard
for fall, if I’m 15 percent overweight, we have to at least take care
of that, but what if I’m 40 percent overweight, or what if I’m, you
know, seriously heavy, 50 percent overweight, or 60 percent over-
weight? Does the safety standard have to accommodate each of
those? Do we have different fall standards for different weight peo-
ple, or do we have a single standard; do you know?

Mr. Dear. No, you don’t have a—in the case of falls, you have
a specification, what the height limit is. Then you say you need
some devices, personal protective equipment.

Let me illustrate on a broader basis. There are lots of hazards
that cause different effects in people. Some people smoke ciga-
rettes. Not everybody gets cancer, but the evidence is overwhelm-
ing at this point that a significant proportion of lung cancer is due
to smoking. We don’t say, well, this is not a public health issue be-
cause only some people will be affected by it.

Some people get cancer if they are exposed to asbestos. They
have a much greater risk of getting cancer if they also smoke. That
doesn’t mean we set a standard for asbestos exposure that only ob-
tains to workers who are smokers and set it lower, nor does it say
that we ignore that.

Part of the essence of the debate about how you do risk assess-
ment is how you do that scientific evaluation of where do you put
the line; what is above and below. Below the line, some people are
still going to be made sick; above the line, some people are going
to not have a problem. TMs

Mr. SHADEGG. I guess I would like to stick with my example, be-
cause I’m trying to follow it out. Assuming that my brother in his
construction business has an employee who is truly obese, let’s say
50 percent or 60 percent overweight, and it’s beyond the OS!
standards for fall protection. Ultimately, do we rely on my brother’s
common sense not to put him in a position on a roof, or how does
OSHA prepare a standard that protects all Americans?

Mr. Dear. The weight of the worker is irrelevant in that exam-
ple. We are going to say to your brother—well, the first thing we
are going to ask him is, do you have a safety and health program;


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152

Acceptable Levels of CTDs

Another "trigger" for determination of a workplace ergonomic
problem is the level of complaints of symptoms and CTDs. As
previously stated, the medical community often does not know the
non-work related background level for a given musculoskeletal
disorder. OSHA has specified that "excessive" levels would trigger
ergonomic program activation and potentially associated enforcement
activities. The use of symptoms is not an acceptable manner to
ascertain disease status. The National Institute for Occupational
Safety and Health recently published a first effort for determining
the level of carpal tunnel syndrome, one of the more well-known
disorders classified as a CTD. This study relied upon the responses
of workers to determine whether they had carpal tunnel syndrome(CcTS)
and thus the usefulness of the data is in question. CTS is one of
the more difficult diagnoses to make accurately, even with highly
trained medical professionals. Industry would be forced to use
symptoms and simple worker complaints to try to gauge when a
“problem" exists. Business would also be faced with a moving
“goalpost" as to when their "problem" might be under control, i.e.,
what level of CTDs is acceptable.

Questionable Guidelines

As part of its triggers, OSHA uses the NIOSH "lifting
guidelines", While the second edition of the guide improves on the
earlier version in better simulating the many factors involved in
lifting from various positions, the fact still remains that the
guide, while synthesizing the research to date and producing a
lifting equation, has not been clinically validated. By this I
mean, will following the lifting parameters as set forth,
significantly reduce the incidence of back problems and if so, which
back problems? OSHA also provides guidelines for medical
management; however, while requiring, in its other health standards,
that physicians determine a worker’s ability to work with a certain
hazard (aka preplacement medical determination), it specifically
states that preplacement evaluations are not helpful in the CTD
area. This is inconsistent, given the fact that once an individual
has a CTD the OSHA medical management approach would have the health
care practitioner determine what activities the individual can do.
Clearly, business and physicians routinely perform such medical
examinations and physician-based decisions are made for job
placement of pilots, truck drivers, law enforcement officers and
firefighters, using governmental-approved medical standards. OSHA
has its own preplacement medical standards and examination program
which it uses for its own compliance officers. I have consulted on
this program and my present contract with OSHA supports it.

Risk Assessment

In determining the size of the probiem, the industries affected
and the ability of control technologies to prevent and manage the

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15

STATEMENT OF JOSEPH A. DEAR
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
SUBCOMMITTEE OM MATIOMAL ECONOMIC GROWTH,
MATURAL RESOURCES AND REGULATORY AFFAIRS
COMMITTRE ON GOVERNMENT REFORM AND OVERSIGHT
U.S, HOUSE OF REPRESENTATIVES
JULY 12, 1995

Mr. Chairman and Members of the Subcommittee:

Thank you for this opportunity to discuss the Occupational
Safety and Health Administration's activities regarding
ergonomically-related hazards in the workplace. Before
discussing this important topic, I would like to make a few
general comments about the major changes which are taking place
within OSHA.

In the past few months, you have heard a lot of troubling
stories about OSHA. These stories tell of incompetent inspectors
who fine business thousands of dollars for nitpicky violations
that have little to do with worker safety. But most of these
stories nave little basis in fact. Moreover, they fail to
acknowledge OSHA's successes in preventing injuries and
illnesses, or the improvements the agency has made recently.

The plain truth is OSHA saves lives. Since its creation in
1970, OSHA has performed an invaluable service to millions of
America's working families. Through the agency's protective
standards and enforcement program, as well as efforts by
thousands of responsible employers, the workplace fatality rate
has declined substantially. Looking at the 23-year period before

OSHA, the average annual decline in fatalities was 139; but since


128

would have eliminated the need to show that the repeated activity
of bending, picking up, standing or whatever caused anything at
all.

‘The Reagan-Bush Executive Order would have caught this
rule on both the benefit side and the compliance or cost~side of
the equation. Although, as I have said, the rule would not have
had to meet a strict cost-benefit test, it would have had to
address a significant risk with a performance standard. Here, we
neither have a measured risk nor a performance standard to guard
against it. By performance standard I mean what criteria are
used to define a safe workplace for, as the Supreme Court said in
the Benzene case, safe is "not equivalent of risk-free." Thus,
if the agency has not properly identified the injury rate that is
cause for concern, then it is impossible to develop a performance
standard that provides a clear benchmark for employers to meet.
You can not have one without the other.

Even the agency's ability to identify the risk with any
clarity would not necessarily have justified regulatory action if
there are other means to mitigate that risk. Here the
marketplace provides every incentive to prevent repetitive
injuries because they cost money, reduce productivity and impair
competitiveness. Moreover, the Americans With Disabilities act
(ADA) provides a legal incentive to prevent the generation of
disabilities which then have to be accommodated. This case is

thus very much different from a cancer-related case where the


134

and there is some sign, some physical evidence, that that pain is
work related, that there’s a redness on the hand, or that there’s a
lack of strength in the hand.

Under OSHA’s current recordkeeping requirements, that is suffi-
cient to put a case on the record. So of those 300,000 cases that
Mr. Dear talked about this morning, I think we need to focus on
the 90,000 cases that are serious, the ones that result in time away
from work.

While I would agree it is important for people to be aware of
symptoms so that you can deal with problems in advance, it seems
to me, for the purposes of whether or not OSHA should spend one-
third or more of its budget on this subject, we ought to know ex-
actly what the numbers are.

And I think the numbers show that, while repetitive motion
cases represent a small fraction of total cases. For those cases re-
ported in 1985, there was less than one-tenth of 1 percent of the
working population affected by this. It is still below three-tenths of
a percent of the working population.

From a public policy point of view, the question is, where are our
priorities? While the stories, the individual stories and anecdotes,
are important to hear and important to take into account, public
policy should not be driven by anecdotes; it should be driven by

ard scientific evidence. I appreciate Mr. Dear and sympathize,
and I entirely agree with his point that we should be conscious of
those stories and conscious of the human cost, but we can’t let that
dissuade us from focusing on the things that are really important.

I think that, in regard to the ergonomics question, one of the
things that I have done over the last couple of years is kind of fo-
cused on what the scientific evidence is. And with my technical
background and my legal background, the thing that I have been
looking for is some indication that things have changed over the
last couple of years, that the information is getting harder, that the
information is getting clearer, that there are some real results here
that we need to deal with.

We have based our conclusions at the Coalition, regarding the
scientific evidence, on a report that was made by the ANSI Com-
mittee on Cumulative Trauma Disorders, about 2 years ago, that
was submitted to the record in the OSHA ANPR. And basically, the
conclusions in that report were that there was not enough informa-
tion—enough scientifically valid information—to be able to draw
conclusions about relationships between the cases and the out-
comes that we are ing to prevent, and the causes that were
identified, or the so-called risk factors.

I don’t know of anything that has changed in the last 2 years to
suggest that those conclusions are incorrect, and I rely on the ex-
Pertise of the members of those panels that reviewed that informa-

ion.

One other point needs to be made about that data. One of the
significant things that those committees found in reviewing the in-
formation was that, while there was a lot of information, a lot of
reports in the literature about ergonomic injuries, only a very small
number of those cases represented literature reports which had
sufficient data to determine whether or not they were scientifically


189

Mr. McINTOSH. There was a case in Indiana where a nonunion
facility was accused of using the team approach to thwart the
unionization of a plant, and that has everyone nervous that they
will be challenged if they do that, which is why we were trying to
go forward with legislation. Again, a subject for a different hearing
and a different committee.

Thank you all for coming. I appreciate it.

Oh, Mr. Gutknecht, excuse me. I didn’t:see you come in. Do you
have any questions for our witnesses?

Mr. GUTKNECHT. Well, Mr. Chairman, I just had one followup to
Ms. Berkowitz.

You alluded to the fact that there are packing plants that have
people making exactly the same cuts for 8 hours. Do you have any
specific examples of that? I mean, I’ve toured two in my district,
and they rotate people every 20 minutes.

Ms. BERKOWITZ. Meatpacking or poultry?

Mr. GUTKNECHT. Either one.

Ms. BeRKowITz. I don’t know any meatpacking plant that rotates
every 20 minutes. There are none in our union that I know of. So,
sure, where are you from?

Mr. GUTKNECHT. Minnesota.

Ms. BERKOwITZ. Come down to Monfort in Minnesota. They were
just cited by OSHA, and they settled the case, and they are going
to automate some jobs. And we asked them to put in a rotation pro-

‘am on a couple of jobs, and they are going to do that. Yes, in

orthington, MN, there’s a nice Monfort packinghouse.

Mr. GUTKNECHT. OK. Thank you.

Mr. McINTosH. Thank you all. I would ask unanimous consent
that the record be held open. If any of you have additional com-
ments based on the testimony you heard today from other members
or want to add to that—we also may have additional questions that
would come from the committee.

Ms. BERKOWITZ. Mr. Chairman.

Mr. McINTOSH. Yes.

Ms. Berkowirz. I was wondering if I could include this in the
record. I just got it today. It’s an article from Business Week for
duly 17 that says, “Are regs bleeding the economy? Maybe not. In
fact, they sometimes boost competitiveness.” And I thought it
would help in this debate.

Mr. McINTosu. Sure. I have not seen that article. I would be de-
lighted to take a look at it. And if there is no objection, we will in-
clude it in the committee’s record.

Thank you very much. The committee will stand adjourn

[Whereupon, at 2:55 p.m. the subcommittee was adjourned, sub-
ject to the call of the Chair.]

oO


178

Or take Perdue Farms, that saw workers compensations costs at its two North
Carolina plants, decreased by 70 percent since 1989 when the state cited the poultry processor
for failing to reduce cumulative trauma disorders.

Despite the obvious success of these company efforts, many companies in the
industry have still, to this day, not implemented serious efforts to tackle these disorders.

OSHA's limited, but highly publicized enforcement activities during the late 80's
and early 90's also propelled many other companies to take a hard look at how to prevent these
disorders. For the first time, trade magazines and the general media began reporting on how
to prevent these disorders — and the term “ergonomic program” was coined.

From General Electric in Ohio, that implemented a major ergonomics program
in 1991, to a Sara Lee Bakery in New Hampton, lowa, that told the Wall Street Journal that
despite spending money on redesigning jobs it had overall saved $750,000 a year in lowered
workers compensation costs, to Red Wing Shoe in Red Wing, Minnesota, that implemented an
aggressive ergonomics program to reduce these disorders and has reduced workers compensation
premiums by 70 percent since 1989 - the reports from all over were consistent that
preventing these disorders saves money!!!

Yes, it costs money to install improvements —- but from John Deere in Moline,
Illinois, to AT&T in San Diego, Califomia - money was being saved when the companies
embarked on efforts to reduce cumulative trauma disorders. At John Deere solutions
implemented included using tilt devices so employees don’t have to reach overhead, bend over
or crawl under machinery to work. At the AT&T ’s San Diego facility, that designs and
manufactures three different mainframe computers, changes on the job to reduce these disorders
resulted in workers compensation losses plunging from $400,000 in 1990, to $8,600 in 19941!

‘These are but a few of the scores of examples in our files. Yer in my 15 years
of working with companies on these issues, I have mever seen a story
company’s effort to reduce these cumulative trauma disorders — through ergonomic fob
changes — that did not work. Industry lawyers and doctor’s can come before you today and
argue that cumulative trauma disorders do not exist -- or that ergonomic programs are ineffective
— but the experience of corporate America truly renders these hollow declarations. The
meatpacking industry, which - believe me - has never spent money to just appease workers, has
spent millions of dollars preventing these very real job hazards — and they have been repaid
many times over in savings. Corporate America’s experience is that these are very real job
hazards — and that ergonomic solutions work!!

And further, industry is addressing these job hazards because of OSHA.


4

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32

Based on the questions you posed to OSHA, these stakeholder

meetings appear to be of particular interest. We have provided
information to you regarding the participants and the details of
the meetings. While we have found the pre-proposal stakeholder
meetings to be useful and helpful, they are no substitute for the
full exchange of information that occurs in the public rulemaking
process, We made every effort to include as many interested
parties as we could, and to have as many meetings as possible, to
address a broad range of concerns. But with an issue that
affects as many employers and employees as this one does, all
over the country, we only reached a limited number of people and
organizations directly.

However, as I mentioned at the outset, the rulemaking
process following publication of a proposed rule is the best and
broadest opportunity for public input. It is open to any and

every interested party. It can also give the other parties an

opportunity to read or hear what each other has to say about the

issues, and address these concerns in subsequent submissions.

‘The Next steps
In terms of a regulatory approach, we are considering the
next step, publication of a proposal. This would allow the
continuation of the iterative process that is inherent in
rulemaking--that OSHA refines and improves the approach as a
result of public response and additional information. The agency

could then prepare the most sensible and appropriate final rule

18


103

Ergo Stakeholder Meetings/Outreach, page 8

Construction and Maritime Stakeholder
March 31, 1995
Washington, D.C.

AFL-CIO

Associated Builders and Contractors
Associated General Contractors

Atlantic Marine, Inc

Bechtel Corporation

Carpenter’s Health and Safety Fund

Center to Protect Workers’ Rights

Laborers Health and Safety Fund

National Maritime Safety Assoc.

National Constructors Association

National Erectors Association

National Association of Home Builders
Operating Engineers

Sheetmetal and Air Conditioning Contractors Association of North America
United Union of Roofers and Waterproofers
Winchester Homes


39

Mr. McINTosH. Right. But there’s not an OSHA regulation that
requires you to go through a checklist if you determine that you
might have a risk because the worker complained about backache.

Mr. Dear. But, Congressman, you know, if a worker complains
to an employer—my folks complain to me—I don’t tell them, you
know, “I don’t care how you feel, what you think; I’m ignoring it.”
Tm going to check into it. You’re going to do that anyway.

Mr. MCcINTosH. Right. And my point is that step two—we failed
on a commonsense standard of requiring this type of extensive
checklist. And once you put it into a regulation, it isn’t the type
that fits every different situation. The employer doesn’t get to rely
on common sense. There’s this standai at they have to go
through and this procedure that they have to adopt in order to ex-
onerate themselves from any type of culpability or liability, if there
is that type of risk attached, once the rulemaking is in place.

Let me step back to step one, and that is, essentially, you men-
tioned that there was a risk assessment that was the basis for con-
sidering this rulemaking. Has that been a formal study that has
been undertaken by the agency, or was it contracted out? Could
you give us more details on that risk assessment?

Mr. Dear. It’s what we call the “health effects analysis.” It’s
quite extensive. Some of it relied on contractors. This material was
also developed using OSHA’s own staff. This part of the material
we released in March. There are some 700 citations to the lit-
erature that draw a causal connection between the presence of risk
factors, particularly multiple risk factors, and the presence of work-
related musculoskeletal disorders.

Mr. McInTosH. Is that risk assessment available to the public?

Mr. Dear. Yes, we have made it available in discussions. We put
it on the Internet. You can get it on the OSHA bulletin board, or
you can get it through a Worldwide Web site called “Ergo Web.”
There have been 4,000 downloads from the DOL bulletin board.
And I asked for a count on how many hits there were on Ergo Web,
and there were several thousand.

So, yeah, you can get it easily.

Mr. McINTOoSH. Have you had any comments about the reliability
of the risk assessment?

Mr. Dear. We have received—yes, particularly in the stakeholder
meetings that were conducted in March and April. And I have had
opportunity to meet with various labor and business groups in pub-
lie settings where concerns about risk assessment have been pre-
sented to me.

Mr. McINTosH. In general, is there a consensus among the stake-
holders that this is a good risk assessment?

Mr. DEAR. There is not consensus.

Mr. McInrosu. Are there any plans to do any further studies in
order to try to reach consensus?

Mr. Deak. Yes.

Mr. McINTosH. And will those be conducted by the agency?

Mr. Dear. No, they will be conducted by NIOSH, by independent
researchers. We have asked some companies whether they woul
voluntarily implement these and give us some real-world experi-
ence. They- may not be exactly scientific studies, in the sense of em-
pirical research, but practical, real-world applications of these ap-


164

might have gone on for a long time. But once we got started with the safely effort, it
made a big differance in all these other areas as well. It was like making the first
move to get things started.

| think this Is also true at other smart companies. I've visited the Xerox Corp.
plant near Rochester. They also have an active partnership with our union, and they
work on the same kinds of problems -- ergonomics, quality, productivity. They even
win quality awards because they are serious about fixing problems the right way.

| hear all this talk about cutting back on goverment regulations and
enforcement -- like the bill by Cong. Ballenger to give companies big loopholes to
violate of life-and-death safety standards, and big cuts in the number of OSHA
inspectors. This scares me. | know what our union people have gone through to get
where we are. | don't want to start taking backwards steps now.

‘Would our company have moved the way it did without pressure from OSHA? |
don't know. Maybe without OSHA our accidents would have continued the way they
were. We would have cost Masland too much money on insurance and workers
compensation; they would have shut down and gone somewhere else and that would
have led to 300 more unemployed people in Lewistown.

| can't believe what I'm hearing. If you really knew what was going on out there
in the plants -- and what was good for both workers and employers ~ you'd be telling
OSHA to get moving with Its standards. You wouldn't be holding them back.

Since | started working on this, | learned some more about the bills to cut
OSHA. I've learned that the bill by Congressman Ballenger would tum OSHA into a
complete paper tiger, with no reai teeth fo protect workers. Under the Ballenger bill,
OSHA could only issue warnings -- with no fines— to companies that violate OSHA
safety and health standards. Only after a worker was injured or killed could OSHA
take any real action or issue any serious fines,

This is just dumb. Everybody knows what it takes to get the attention of a

sloppy or negligent company it takes good inspectors with good standards and reat
enforcement powers, including real fines.

‘And the management at Masland Industries agrees. Here's what they said in
thelr letter to Senator Kassebaum:

We belleve that strict of duly promulgated safety regulations is good for
all....Productivity, quality and employee tumover are just a few of the significant
performance standards that are benefactors of increased safety performance
and compliance with safety standards.


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148

fa\

SANDLER OCCUPATIONAL,
MEDICINE ASSOCIATES. INC

HOWARD M. SANDLER, M.D.

TESTIMONY BEFORE THE HOUSE SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES AND REGULATORY AFFAIRS
RE: OSHA’S ERGONOMICS REGULATORY EFFORTS

JULY 12, 1995

Good morning. I appreciate this opportunity to provide
testimony today to the U.S. House of Representatives’ Subcommittee
providing oversight on the regulatory activities of OSHA regarding
the promulgation of a health standard in the area of workplace
ergonomics.

I am a physician specializing in occupational and environmental
medicine. I received my bachelors and medical degrees from the
University of Maryland and served as a medical officer with the
National Institute for Occupational Safety and Health(NIOSH). For
the past twelve years I have consulted for the U.S. Environmental
Protection Agency, Consumer Product Safety Commission and other
government agencies. As President of an occupational and
environmental health consulting firm, Sandler Occupational Medicine
Associates, Inc. (SOMA), I have assisted industry and government in
assuring the safety and health of their workers through the design,
implementation and management of various occupational health
programs, including those involving the prevention and management of
musculoskeletal disorders. For the past six years, my firm and I
have consulted with OSHA under contract for the medical evaluation
for placement and surveillance of its compliance officers. I
publish in the medical and scientific literature and regularly
lecture in various professional settings, including numerous
seminars on ergonomics, musculoskeletal disorder prevention and
management. I was also a coauthor for the National American
Wholesale Grocers Association’s "Voluntary Ergonomics Program
Management Guidelines" and have consulted with other trade
associations to address their industry sector’s ergonomic concerns.

For the past several years, I have served as a medical and
scientific advisor for the National Coalition on Ergonomics. As
part of that organization, I have provided ongoing expertise for
scientific analyses of the state-of- the-art of knowledge on the
association of work to the development of various musculoskeletal
disorders.

1
275 BROADHOLLOW RD. * SUITE 302 + MELVILLE, NY 11747 * 516-756-2204 © FAX 516-756-2213,
NEWYORK WASHINGTON DC PHILADELPHIA


35

Mr. McInTosu. Thank you, Mr. Dear.

Let me ask Mr. Woodward if you have any comments you would
like to make.

Mr. Woopwarb. I have no statement.

Mr. MclInrosu. OK. Thank you both for coming.

Let me first, I guess, make a statement and then go into some
of the questions I have. At the beginning, you talked a little bit
about OSHA's mission, generally, and while it may be the case that
you and the President feel that things are changing, I can assure
you that the constituents that I talk to in Indiana do not think that
is the case. There is a disconnect somewhere along the line.

When I was home over the 4th of July, I met with several res-
taurant owners, and one of them told me a very recent episode
where they tried to construct a new restaurant—they weren’t usin,
a union contractor—and the OSHA inspector basically sat there al
day, waited for any problem, and cited them with more and more
citations. So the message isn’t getting through to the field, and
something needs to be done about that. That is a general problem
and one that I think other committees will end up addressing.

In terms of ergonomics, you mentioned that you do plan to con-
tinue looking at this rulemaking. My question there is, is the plan
to continue using the proposal that was put forward in the public
for discussion earlier this year, or has that been scrapped? What
is the status of that, and what are the processes that you all plan
to be using in developing that?

Mr. DEAR. We have worked a long time, as I indicated, for years,
developing a proposal. We have recently taken out a draft of the
Proposal and a lot of supplementary information, the health effects
analysis, for public comment from labor, business, and professional
organizations. We are currently assessing the comments we re-
ceived as a result of those and deciding what the appropriate next
step would be, in terms of modification of the proposal.

In terms of your basic question, if the approach which identifies
risk factors which contribute to the incidence of musculoskeletal
disorders, and developing a performance-based standard to reduce
the risk factors, as a way of eliminating those injuries, is the basic
model we are using, the answer is yes. But there are a host of pol-
icy questions which are available around using that approach to
solving this problem.

Mr. McINToSH. So the proposal that is being circulated, for some-
body who wanted to have an idea of what the Government is look-
ing at or thinking about and working on, for all intents and pur-
poses, that is still the working paper that the agency is using, as
it considers whether or not to issue a rule?

Mr. Dear. We circulated a proposal last September in an outline
form. We modified that proposal and circulated a much more thor-
o draft, including 26 pages of regulatory text, which specifically
laid out and allowed everybody to comment on that. We got a vari-
ety of views based on that.

Some folks thought this was not ready, and you are going to hear
from some of them today. Other folks said, “Why are you taking
this out for comment? Just publish the darn thing and get on. Peo-
ple are being hurt every day, and the delay means more injury.”


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104

Ergo Stakeholder Meetings/Outreach, page 9

General Industry
April 3, 1995
Washington, D.C.

AAMA

Amalgamated Clothing and Textile Workers Union
AFL-CIO

AISG

American Insurance Association
American Meat Institute

Liberty Mutual Insurance

National Paint and Coating Association
National Broiler Council

National Association of Manufacturers
Office of Management and Budget
Organizational Resources Counseiors
Teamsters

UAW

United Food and Commercial Workers

Small Business
April 5, 1995
Washington, D.C.
Atlantis Apparel
Charleston Forge
Composites Fabricators

International Fabricare Institute

National Small Business United

National Association of Manufacturers

National Institute for Occupational Safety and Health
Office of Management and Budget

Textile Clothing Tech Corp.

The Travelers Insurance Company


167

UNITE! The Union of Needietrades, Industrial and Textile Employees
Disabling Worker Injuries and Ilinesses, 1987 - 1994

Masiand Industries, Inc., Lewistown, PA

Injuries Repetitive Motion Cases

Number lost days ___Number [ost days

0} ing)

1987 76 460 37 462
1988 110 955 31 608
1989 49 887 35 527
Post-OSHA

1990 48 473 17 324
1991 21 33 15 206
1992 20 202 9 1
1993 29 209 9 188

1994 29 64 19 75


126

I hope also to demonstrate that OSHA has not made public
sufficient information and reasoning to begin to approach the
threshold showing required of a Notice of Proposed Rulemaking.
In so doing, I hope to show that the ergonomics rule is a case
study of the need for legislative and judicial oversight of the
kind contemplated by H.R.9 and S.343. In this context I would
like to commend this subcommittee for its contribution to the
apparent suspension of the rulemaking effort. But I should y
add quickly that the process for oversight and accountability
deserves a rigorous legislative framework.

The approach that would have been taken to this rule in
the Reagan-Bush years would have been fairly simple: Make sure
that the regulatory Impact Analysis required by E.0. 12291
demonstrated a need to regulate not met by other agencies or
statutes or the marketplace itself, and then if there is a need,
that it be met in the most cost-effective fashion, including use
of a performance standard rather than command and control. on
the threshold issue of need, the question would have been phrased
not whether benefits justify the costs, because that would have
been inconsistent with the supreme Court's Cotton Dust decision,
but rather whether, as the Benzene decision requires, there is a
significant risk of injury as demonstrated by sound science.

Put another way, do we need to regulate, and if so, are
we doing it in the least burdensome fashion?

I do not believe the ergonomics rule could support a

yes to either question. On the question of need, it is very


45

Mr. PETERSON. That’s what I want to accomplish. And, frankly,
too often we end up, in this regulatory process, doing things that
are contrary to that. That's what I want to stop.

Mr. Deak. I’m here to fix that.

Mr. PETERSON. This HASIP issue, I mean, here is another regu-
lation that is going to work to the wrong ends, in my opinion, the
way they are doing it. We've got a lot of good things going on out
there, and if they would have gone ahead on this the way they did,
they would have actually stopped the best companies from doin
the right things. It’s just another one of those things where I thin!
we've got to slow down, and hopefully we will straighten it out.

One of the things, as I understand how this is going to maybe
be implemented, what they were talking about was forcing these
companies to cool their products to 37 degrees—or 40 degrees,
which would cause them to have to cool the workplace to 37 de-
grees. And if that happened, you know, my being in these turkey
plants, I mean, if they are going to have to work in 37-degree tem-
perature, you’re going to have a lot more injuries than you have
now.

So I think you really need to be paying attention to these other
rules. What we’re doing on one hand may make your job 10 times
harder on the other hand.

Mr. Dear. I claim no detailed knowledge about the HASIP stand-
ard, but, as 1 indicated, I talked to Michael Taylor at the Depart-
ment of Agriculture and said that the industry had communicated
concern about worker injuries that might help, and that I was
available, at his request, at any time, to discuss that. And, as I in-
dicated, he said that they are in the comment period. So we will

lo that.

Mr. PETERSON. This just happened? This discussion just hap-
pened in the last week or two?

Mr. DeEaR. Within the past 2 weeks.

Mr. PETERSON. Well, that concerns me, because this mega reg
has been out for a long time. The fact that you weren't commu-
nicating concerns me, as well.

Mr. DEAR. Well, I called him within days of having the industry
let me know they were concerned.

Mr. PETERSON. Well, I guess I just hope that somehow or another
we can change the mind frame of our whole regulatory process, be-
cause I don’t think it’s—you know, you can be at the top and you
can change these rules and attitudes, in my experience out in the
field—I think wetlands is a good example—we've got these wet-
lands rules that are driving my farmers crazy not because anybody
disagrees with what we're trying to do, but the problem, frankly,
is the people that implement them.

I have a county where they have implemented the wetlands rules
and had zero problem, have solved everything without any prob-
lem. The next county over, which is the same type of land, the
same situation, you've got the biggest mess you've ever seen, and
the difference is, the people that are administering and interpret-
ing the law. ‘And that's the problem that we've got to deal with. 1
mean, you can do the right things up here, but you've got folks
down below that can schmuck up the system, no matter what you
put in the law.


; AA- 17 T

U.S. Department of Labor ‘Occupational Safety and Health Administration
1999 Broadway. Suite 1690
Denver, Colorado 80202-5716

February 2, 1995
MEMORANDUM FOR: JOSEPH DEAR
Assistant Secretary for OSH,

FROM: ~ BYRON R. CHADWICI
Regional Administrator,

SUBJECT: ‘Organized Labor Support

In response to a request from the local President of the AFL-CIO and the national
President of OCAW, I met with approximately 22 local union officials in my office from
2:00 pm to 3:00 pm today. The union officials brought with them petitions signed by
several hundred workers in the greater Denver area. Although we discussed a number of
issues, such as the lack of funding for the Accident Review Board created in 1990 for the
chemical/petrochemical industries, workplace violence, and OSHA's complaint procedures,
it was clear that the main purpose of their visit was to impress upon OSHA the absolute
necessity of promulgating an ergonomic standard as soon as possible. I was asked to
personally tell “the folks in Washington" that the first step in this process should include
releasing OSHA's current draft of the ergonomic standard. 1 was told that if we would
this, we could count on labor to support us as we go forward through the long and arduous
process of promulgating a final rule.

The meeting was cordial. ‘The union representatives were well prepared and remarkably
well informed on the process of writing standards. I think it important to note that, in
spite of the cordial atmosphere, these people were determined to see a standard and were
fully prepared to hold us to our responsibility under the Act to promulgate and enforce an
‘ergonomic standard.

Attached are 27 pages of petitions.
Attachment

Seon
ora MR 23 fo

7



Because the United States continues moving toward a service-based economy,
with greater competition from world markets, and because every job requires us at some
point to sit, stand, walk, talk, move our hands, and increasingly use a computer, we will
necessarily be engaged in repetitive activity. We need to learn more about the long term
impact of such activity on our health and safety before we attempt such a massive,
sometimes silly regulatory effort.

There is anew thinking in Congres that & grounded on the principles that (1)
regulations should use common sense, (2) they should be based on thorough risk
assessments and good science, (3) they should not cost American workers their jobs, and
(4) they should increase individual freedom.

T want to thank the witnesses for being here today.


OSHA’S REGULATORY ACTIVITIES AND
PROCESSES REGARDING ERGONOMICS

TUESDAY, JULY 12, 1995

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,

NATURAL RESOURCES, AND REGULATORY AFFAIRS,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 10:15 a.m., in room
2154, Rayburn House Office Building, Hon. David M. ‘McIntosh
(chairman of the subcommittee) Presiding.

Present: Representatives McIntosh, Gutknecht, Shadegg, Peter-
son, and Slaughter.

Also present: Representatives Owens and Meek.

Staff present: Mildred Webber, subcommittee staff director;
Karen Barnes, professional staff member; David White, clerk;
Bruce Gwinn, minority senior policy analyst; and Kevin Davis, mi-
nority professional staff member.

Mr. McINTOoSH. The subcommittee is called to order. Let me note
for the record that a quorum is present.

Today’s hearing will focus on OSHA’s regulatory activities on
ergonomics. Not only has the rulemaking itself been controversial,
but OSHA’s regulatory approach, especially in the face of congres-
sional opposition, raises questions that need to be answered.

First, I want to commend two of m: colleagues, Chris Shays, who
chairs the Government Reform and Oversight Subcommittee on
Human Resources and Intergovernmental Relations, which has
oversight responsibility for the Department of Labor, and Cass
Ballenger, who chairs the Education and Economic Opportunities
Subcommittee on Work Force Protections,

Their leadership and excellent work has made great inroads on
this issue. At this time, I would like to ask unanimous consent that
a statement by Mr. Shays be entered into the record of this hear-
ing. Seeing no objection, it is so ordered.

e prepared statement of Hon. Christopher Shays follows:]

@


available.

150

Nonetheless, OSHA’s recent strategy was to attempt to

promulgate this standard without such critical understanding and
scientific justification. While there are numerous criticisms of
the OSHA proposed draft standard, three overall criticisms are
offered here along with five specific examples of deficiencies.

General Criticisms

°

FINDING OSHA has not performed a sufficiently objective
weight-of-evidence evaluation of the musculoskeletal
disorder (MSD) literature and appears to have approached
the effort with predetermined expectations. The key issue
is that OSHA used selective, “positive” studies and
arbitrarily or otherwise dismisses negative studies.

FINDING -- OSHA’s scientific approach to evaluation of the
MSD epidemiologic literature is deficient and this
deficiency introduces further lack of objectivity in its
literature analysis. One issue is that in some instances
OSHA relies on other authors’ interpretations of thes
studies without doing independent evaluation. OSHA also
used "methodologically-flawed" studies citing that they
provided "valuable" information.

FINDING -- OSHA’s treatment of alternative factors for
MSDs lacks objectivity and is slanted toward favoring
positive findings and a physical basis for MSD symptoms.
Recent studies show a potentially large impact of personal
Psychosocial factors on MSD symptoms, yet OSHA has
selectively discussed limited evidence and presents it as
vorkplace issues, down playing individual worker
psychosocial problems.

Specific Scientific/Medical Issues

a)

(2)

(3)

Symptoms and ill-defined clinical entities are proposed as
adverse health effects allegedly due to ergonomic risk
factor exposure.

Proposed ergonomic risk factors and their “trigger” levels
are used without either identification of the mix of
factors or the levels of factors necessary to produce
cumulative trauma disorders.

A notion of continuous improvement in the reduction of
musculoskeletal disease is proposed, although no
"background" acceptable rates in the population are
specified.


42

they are based on estimates of return on capital and return on in-
vestment. If those decisions tell employers the sensible thing to do
is to automate, then that is a decision that will be driven by eco-
nomic, by market logic, not by a regulatory requirement.

Mr. McINTosH. Except that your regulatory requirement is going
to add cost to the alternative system. It’s going to make the labor
factor more expensive. Classic economics tells you, when labor be-
comes more expensive, people figure out ways to use more capital,
in this case, automation.

Mr. DEAR. We don’t agree here. I mean, because my observation
of the-——

Mr. McINTosH. Then you don’t agree with Adam Smith. I mean,
that’s what happens when labor becomes more expensive. People
find alternatives to use more capital.

Mr. DEAR. Your assumption is that these solutions cost more
than the status quo, and our belief is that these solutions reduce
the cost of production; they improve its quality and improve the
competitiveness of the firm.

Mr. McInrTosu. So you’re telling me that, throughout industry,
it’s a widespread phenomenon that people are making the decision
to have a more expensive process than they would otherwise, that
they could actually save a lot of money by adopting this process,
but they don’t do it, and therefore we need to have a regulation to
force them to do that.

Mr. Dear. That’s right, that you have—

Mr. McINTosH. I do find that difficult——

Mr. Dear. No, you have—I’ve presented 131 cases of employers
who have addressed problems of work-related musculoskeletal dis-
orders, using ergonomic principles, to the benefit of the firm. In
many of these instances, it was done voluntarily. In some of the in-
stances where we cite successes, it was the result of enforcement
by OSHA, a wakeup call, if you will.

The automobile industry and the meatpacking industry are
prime examples of a problem which was enormous, in terms of eco-
nomic and human cost. OSHA stepped in, in enforcement, got the
attention of the industry, and a host of cooperative programs devel-
oped from that: labor-management programs, programs with us, in-
dustry experts, academic experts being brought in, and solutions
which have reduced injury and cost.

I met with the CFO of a meatpacking company, and he said, ba-
sically, “When I saw this agreement we had entered into, I
thought, my goodness, why did we do this?” When he saw the re-
duction in workers’ comp cost and the reduction in the turnover
rate that resulted from the implementation of the ergonomics
agreement, he said, “This is a moneymaker for the company.”

Mr. McINTOsH. It sounds to me what we need is a massive edu-
cation program. Maybe we need to enlist the Chamber of Com-
merce to make that happen, rather than a regulatory approach. I
mean, if it’s going to be in their own interest, then we need to get
the companies to have that information and rely on them to make
that decision.

Mr. Dear. I agree. That’s why I have talked about a balanced
strategy that does include education and partnership. But some-


161

Masland held our location against us. They told us we had to produce more
than other plants or we'd lose our jobs, People felt they were just machines -- If |
break, they'll just replace me. Just put my clock number across my back,

Was there a better way to do It? We were trained to use both hands -- because
if you used only one hand, you'd be in trouble. By using both hands to cut and
hammer, you could take some of the strain off of your wrists, hands and arms. But
‘some people could not do It with both hands, so it wasn't much good. At some point,
you Just wore out. You can't hit something night after night and be OK forever.

That's all there was to it. Masiand never thought about changing the machinery.
In 1989, before OSHA came in to inspect, a worker called OSHA on the telephone
and OSHA contacted the company. The Company had been looking at various types
of hammers ~ using engineers from Penn State. The new hammers helped, but it still
wasnt the answer.

Finally, a worker filed an official, written complaint, and OSHA showed up to do
its inspection. | wasn't directly involved with the Inspection, and | can get you more
information if you need It. However, OSHA did find that the ergonomic hazards were
serious, based upon the large number of Injuries.

There is no OSHA Ergonomics Standard, so OSHA had to use the next best
thing ~ the General Duty Clause. And they could only do it because there were so
many injuries in our plant.

| would hate to think what would have happened if the number of injurlas had
been a little lower. What would OSHA have said if OSHA needed more injuries to take
action ~ “Wait another six months until you've crippled @ few dozen more workers,
and then call us again."? -

But OSHA did issue a citation which required Masland to fix the hazards, with 6
$7,000 penalty. (See attached copy.)

Masland appealed the citation. OSHA sat down with Masland and with the
unian to negotiate a Settlement Agreement. After many discussions, the company
finally agreed to do the most important thing — automate the molding operation to
eliminate some of the most hazardous job tasks ilke hammering and cutting. The
company made this commitment in the Settlement Agreement.

Finally, things started to change — with the new automated knock-outs and
“hands-free” design molds. Automating the flat knock-outs was easy, but angled ones
were hard so the hammers were still being used. As of today, there are no more
hammers or knives, even if the work now involves more of a constant effort.


73

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82 .

AA. 954

Dear Mr. Secretary:

I am Asuncion Olivieri. I worked for 37 years sewing at a garment
factory. In the last years my spine has been affected. This illness
has prevented me from continuing to work. Due to the bad working
conditions my health has been permanently damaged.

I cannot neither sit nor stand too long. Always my job was
work, which affected my health very badly. This sickne:
impeding me to do my housework and my personal things. I can't do
some things by nyself.

These illnesses can be prevented. We need your support to get
better standards for work and better equipment, like chairs,
machines, tools, and sanitation, etc.

Thanks for your attention and we hope for solutions soon to work-
related health problems.

Sincerely yours,
Asuncion Olivieri

850 Knickerbocker Ave.
Brooklyn, N.Y. 11207



OSHA’S REGULATORY ACTIVITIES AND PROCESSES
REGARDING ERGONOMICS

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION

JULY 12, 1995

Printed for the use of the Committee on Government Reform and Oversight

ie

U.S. GOVERNMENT PRINTING OFFICE
35-561 CC WASHINGTON : 1997

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053823-8



108

Mr. Owens. I think Mr. Dear has answered part of this question,
and I don’t want to be redundant, but our chairman of the sub-
committee, Mr. Ballenger, made a statement that “Nobody ever
died from ergonomics,” or why are we so concerned about it?

You started to talk about it a little bit before, the fact that there
is no bleeding, you know, when you have a back injury, and blood
doesn’t drip from people’s wrists when they are ruined. We had a
lady testify at a hearing in New York where she came in and she
could barely testify. She was weeping profusely because her hands
were gone, She worked in the garment industry; that’s the way she
earned a living. Her hands were gone, which meant that she was
employment dead, economically dead.

There’s a lot of talk about putting workers out of work hy having
standards. Well, the workers fet put out of work by not having
standards. They are economically dead. And you started to talk be-
fore about the cost of taking care of those people transferred to
some other sector. We still have a cost; whereas, we might have
avoided it if we had not killed them economically.

Do you care to comment? And the fact that there may not be any
dramatic death statistics, on the one hand; on the other hand, the
number of people affected by these various illnesses is far greater
than the number who would be killed by some kind of machine,
being crushed by some kind of machine, the kind of dramatic
things that we zero in on.

The pattern, what is the pattern, and what is the cust of these
economically dead people?

Mr. Dear. The human toll is stunning. It’s easy to use the num-
bers—300,000 reported repetitive stress illnesses; 700,000 injuries,
if you add back injuries; 2.7 million workers’ compensation claims;
$20 billion of workers’ comp expense.

It’s easy to forget, as we sit in hearing rooms in Washington, DC,
and go about our business that most people go to work every day;
they work hard; they do the same thing every day. The job is the
most important thing they have to maintain their status in the
middle class. There is tremendous fear that they may lose those
jobs if the report a hazard, if they say they are disabled, if they
file a workers’ compensation claim. Sure, there are a few people
who try to take the system for a ride, but the vast majority of
workers want to do good work.

Mr. Owens. So in the absence of any kind of enforcement stand-
ard—any standards, first of all, and any way to enforce those
standards, we can have a situation where employers just choose to
pursue a policy of disposable workers instead of spending the cap-
ital necessary to change machines, and so forth.

It may be cheaper for them to just use a policy of disposable
workers. We have disposable spoons and disposable glasses, et
cetera, so just throw the workers away as you use them and go on
to another one. That would be their solution to the problem.

Mr. Dear. That can happen. If it could, a lot of people work hurt.

Mr. OWENS. As long as they can.

Mr. Dear. I mean, they are afraid to report. They work hard.
They stick with it. They don’t get help, and then they require sur-
gery. They end up in the condition you described as being economi-
cally dead. They have no physical ability to work and get paid.


REGULATION

182

ARE REGS BLEEDING
THE ECONOMY?

Maybe not. In fact, they sometimes boost competitiveness

regulations are issued,” says Senate Ma-
jority Leader Bob Dole (R-Kan.).

‘That sounds eminently reasonable.
But there's a serious flaw, according to
most experts in cost-benefit calculations.
“The lesson from doing this kind of
analysis is that it hard to get it right,”
explains economist Dale Hattie of Clark
University. It's so hard, in fact, that
estimates of costs and benefits may
vary by factors of a hundred or even a
thousand. That's enough to make the
‘same regulation appear to be a tremen-
dous bargain in one study and a grie-
vous burden in the next. “If lawmakers
think cost-benefit analysis wil give the
right answers, they are deluding them
selves,” says Dr. Philip J.
chairman of the community medicine
department at Mount Sinai Medical
Center in New York.

‘There's a greater problem: The re-
‘sults from these analyses typically make

look far more menacing than
they are in practice. Costs figured when

BUSINESS WEEK / JULY 17. 1995 75,

Foros


131

In the end, the question comes back to the single issue
-- why regulate and what is the regulation supposed to achieve?
If the question can't be answered, as it cannot be here, then the
regulation should be abandoned. one of the more revealing
aspects of this rulemaking episode is the response of OSHA to the
FOIA request for bibliographical materials collected in
connection with the OSHA ergonomics standard. The answer was a
non-answer, not based in FOIA. Instead of citing a FOIA
exemption, OSHA simply said that it could not make the supporting
materials available until OSHA had finished its work and
published the standard. That is an Alice-in-Wonderland result --
verdict now, judgment later: we'll let you see what we based
this standard on after we're done and it's too late to respond.
But maybe I am being too cynical about OSHA's motives. Maybe
they had no bibliographical references at all to release. But
that explanation is even more scary, if not perhaps also more
accurate, namely, that there is no medical or scientific basis
for this effort.

As I indicated at the outset, one hopes that under
E.0.12291 we would never have let this rulemaking waste this many

agency and private resourc

« The Clinton executive order,
however, is the same as ours in all respects relevant to this
case study. So what has happened? The simple fact is that, as
James Tozzi's study of the Clinton executive order shows, the
White House, OMB, and the agencies simply have not followed it,

and it has as a result gone largely unenforced. This is why


159

TESTIMONY OF

MR. RICK TREASTER

PRESIDENT, LOCAL 2400
UNITE!
Union of Needletrades, Industrial and Textile Employees
Lewistown, PA
on

OSHA STANDARDS TO
PREVENT ERGONOMIC HAZARDS

Before the

Subcommittee on National Economic Growth,
Natural Resources and Regulatory Affairs

House Committee on
Government Reform and Oversight

Washington, DC

July 12, 1995






109

It’s easy to say, “Oh, gee,” you know, “it’s a sports injury on the

weekend,” or “everybody's got a bad back.” Well, you know, most
of the people in this room know what back pain is like, and you
know when it hurts. And some of those are work-related. ‘And to
go to work hurt, which is what people do—now, if you’ve got a
standard, you have a statement of what is minimally acceptable
and a guide to how to improve the situation. That’s what this is
about.
I think there are circumstances where employers, consciously or
unconsciously, because they are unaware of the costs, don’t do
things to prevent injury in the mistaken belief that it makes them
more competitive. And the consequence is, workers are treated like
debris left over from the production process, and they are swept
aside and consigned to a scrap heap.

Mr. OWENS. Just one last question on this matter of people de-
scending from OSHA, inspectors or officials, in great numbers on
the businesses of America and harassing them. In a previous hear-
ing that we held, I think the figure was given that, with the num-
ber of inspectors you have, a business in America cannot expect to
be inspected except once every 85 or 86 years. Is that still true in
this hearing?

Mr. Deak. Yes, sir.

Mr. OWENS. So the number of people—you have fewer and fewer
front-line workers out there. They are overworked and underpaid
already, and now there is a proposal that you get an OSHA cut of
30 percent, I think is being proposed.

ir, DEAR. In enforcement.

Mr. Owens. Yes, in your enforcement. So there will be fewer and
fewer to enforce any standards that are ever developed, if you have
a chance to actually develop them.

Now, I heard statements about bureaucrats, and we hate to
interfere with bureaucrats, and help them do their jobs, you know.
I think I’ve had examples of bureaucrats having an outrageous lack
of judgment also, but we interfere with bureaucrats here all the
time.

One great interference that I've watched here in the last few
weeks is that, in the case of the B-2 bomber, you know, we inter-
fered. The Department of Defense doesn’t want the bomber. The
Secretary of Defense doesn’t want the bomber. The President
doesn’t want the bomber.

Congress interferes and puts the funding for the bomber back in
the budget, $530 million right away, and over the life of the
gram, $31 billion. That’s interfering by Congress in the work of bu-
reaucrats who made some sensible decisions about not having a
costly thing in the budget.

On the other hand, they want to take out 30 percent of your
small agency's budget. at’s interfering in another direction,
which doesn’t make any sense at all.

I thank you for the opportunity, Mr. Chairman, to be able to
comment.
ok. McINTosH. My pleasure. Thank you for joining us, Mr.

wens.

Let’s take a recess at this point to vote, and then we will be back.
I think everybody has had their chance to question you. There were


30

ergonomics, and requires complicated extrapolation from animal
data to the worker population.

In this situation, however, our evidence is from human
experience since it is based on actual cases reported by
employers to BLS, or accepted by various state workers’
compensation systems as work-related disorders. This is unusual
in the area of occupational health effects, which are typically
widely underreported. In addition, there are extensive
epidemiological studies that confirm the problem, indicate that
it is even more prevalent than the reported cases would indicate,
and identify the risk factors that are associated with the
development of disorders. OSHA has based its preliminary
proposals for specific action to be taken in order to address
problems of work-related musculoskeletal disorders based on the
collective weight of this evidence. I would be pleased to
provide a listing of such studies for the Committee at your
request.

Would more information or research be helpful? Of course.
But does that mean the agency should wait to address this issue?
We don't believe it does. ‘The evidence already indicates that
employees are at significant risk of developing work-related
musculoskeletal disorders, and that there are existing methods to
protect them. It is time to ensure that protection occurs. Does
OSHA have all the answers to the questions concerning the

appropriate approach to take to protect workers? No, we don't.

16


89

tu. uum. mich, secretary, U.3. Vepartment of Labor, Aa ~F0$

200 Constitution Ave. NW, Washington, OC 20210
SSO SY

Mf T1fons of workers in the United states are suffering from injuries to their

hands, arms, neck, shoulders, and back. These injuries are ci
repetitive work, frequent I1fting, working in uncomfortable basitions, een

(11 day in bad chairs, standing on hard floors, and working with 1 ih
tnd the nih! "Ip

designed tools and work stations. These injuries cost workers and
billions of dollars annually, and they are preventapts;;Please act now!

Publish the Ergonomics Standard and prevent these ‘oocktH oraceR

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37th 1. MY, NY 10005

Return to: CWA District 1 Health & Safety, 80 Pine St.,


AA 950

Dear Mr. Secretary:

I am Marleny Sossa. I have pain in my hands and arms very bad. I
have carpal tunnel disease and tendonitis. I have a strong pain and
I cannot sleep. At night I feel nunbnesses and cramps. I can't hold
things in my hands because they fall. I lost strength especially ny
right hand I feel too much pain and distrese. This pain is too
much.

I stayed for 15 years on my job. Now, I cannot work. I am disabled.

We want help and prevention to these illnesses and we need better
work tools, and adjustable chairs that have back support.

Mr Reich, He hope that you give us your support to our problems,
and we invite you the company where I worked, this is Gary
Plastics.

Thank you very much for your attention.

Sincerely yours,

Marleny Sossa
540 Jackson Ave. Apt. 6A
Bronx, NY 10455



12

orders. In addition, these problems cause a stunning personal toll
on workers who experience their effects.

Now, we have heard people say that OSHA is promulgating a
comfort standard, that every minor ache and pain in the workplace
will now be regulated. is is simply not true. Any proposed
ergonomics standard would focus on those jobs with the highest
risks.

The workers whose livelihoods have been curtailed as a result of
these disorders, who have suffered permanent disability, and whose
quality of life has been drastically impaired deserve attention to
this compelling and serious occupational health problem. We will
submit for the record letters, a sampling of the over 1,000 letters
we have received from workers who are afflicted with this problem
and who have asked for action.

Last year, the Wall Street Journal published a stery by Tony
Horwitz, who described his experience working in a poultry proc-
essing facility, among others. Mr. Horwitz won a Pulitzer Prize for
this article. He experienced firsthand the difficult conditions under
which work in poultry processing facilities is performed.

He said, in part, regarding workers in a poultry plant, “Packed
tightly and working quickly with knives and scissors, workers often
cut themselves and others. Floors that are slick with wash water
and chicken bits add to the hazard. And though most tasks appear
at first undemanding, if unpleasant, they quickly become gruelin;
as the same motion is repeated at rapid speed for 8 hours or more.

As I said, the problem is work-related musculoskeleta! disorders,
and the solution is brin ing ergonomic principles to bear in the
workplace. The evidence that OSHA has collected over the past few

ears indicates the problem is significant and suggests that there
is a strong basis in medical science to initiate rulemaking in this
area.

This evidence has led to the agency’s conclusion that a common-
sense strategy regarding ergonomical ly related hazards must be de-
veloped. This strategy should consist of consultation, training and
education, labor and industry partnerships, sensible and appro-
priate regulatory approaches, and a sensible enforcement and liti-
gation strategy. In other words, a balanced approach.

In fact, many employers have recognized these problems and
have implemented successful solutions, hovsehold name companies
like AT&T, du Pont, Hewlett-Packard, and many others. In the
supplement to the record we have 131 case studies from American
industry of successful interventions to reduce musculoskeletal dis-
orders using ergonomic principles. These employers reported in-
creased productivity, reduced workers’ compensation premiums, de-
creased absenteeism and turnover, and increased employee morale.

Now, I have made ergonomics a priority during my time as As-
sistant Secretary, but this effort did not start with my tenure in
the agency. In fact, OSHA has been actively pursuing issues relat-
ed to ergonomics for 15 years. Beginning in 1988, in the Reagan
administration, OSHA entered into a number of corporate-wide set-
tlement agreements with large companies who had multiple facili-
ties with similar operations.

Two industries received considerable focus in that regard: meat-
packing and automobile manufacturing. I think it is interesting to


I. ERGONOMICS SUCCESS STORIES


71

DASUAND indusing
Techekcal Center

47660 Hayard Dehe

Phymouth, Michigan 68170-2459
Tek 13) 416-8300

‘ar: (999) 416-9550 Glen

cy MASLAND

INOUSTRIUES

June 20, 1995

‘Senator Nancy Kasscbaum,
‘Chair, Senate Committee on
Labor and Human Resources

US. Senate,

‘Washington, DC 20510

Dear Seaator Kassebaum:

Tundermand that on¢ of our Masland associates, Richard Treaster, has the opporninty to testify
before your compnitiee. I want to reinforce that Masland Industrias supports his tctimeny and that
tho relationship we have with bis union, ACTWU, and with OSHA wad the dorainant factor in the
sucess that Richard portrays to your commitee,

We believe that strict enforcement af duly preamlgated safety regulations is good forall. AS we

regulatory
‘amprove our operations. I value the assistance and direction given by Regional Direotors at severat
OSHA regions.

Reson, ota he oporiy ob rene in Wstigton by the Depart of Labor and

President during the recent OSHA roll out ofthe roenginzered organization, The
‘ory isa may poo cam ove af rployees naan, ned evetmet agencies, worting tpt
to beachit our people and our company.

Bs

‘Vieo President, Human Resources


96

Ergo Stakeholder Mectings/Outreach, page 1

OSHA Ergonomics Stakeholder Meetings

1994 to Present
Date Group
February 10, 1994 Healthcare/Dental
February 16,1994 Office Work Environment
February 17, 1994 Construction
March 4, 1994 Town Meeting - Milwaukee, Wisconsin
March 10, 1994 General Industry
March 25, 1994 Agriculture
March 31, 1994 Town Meeting - St. Paul, Minnesota
April 11, 1994 Town Meeting - Atlanta, Georgia
July 27, 1994 ‘Telecommunications
March 20, 1995 Town Meeting - Milwaukee, Wisconsin
March 20, 1995 Town Meeting - St. Paul, Minnesota
March 21, 1995 Town Meeting - Atlanta, Georgia
March 24, 1995 Town Meeting - Detroit, Michigan
March 27, 1995 Professional Associations
March 29, 1995 Agriculture
March 29, 1995 Healthcare/Dental
March 30, 1995 Office Work Environment
March 31, 1995 Construction and Maritime (also met with
OSHA’s Maritime Advisory Committee on
later date.)
April 3, 1995 General Industry
April 5, 1995 Small Business



185

And yet Mr. Sarvadi was saying that three-tenths of a percent—
and I want to make sure I have the statistic right—is that three-
tenths of a percent of all of the injuries or all of the population?

Mr. SaRvaDI. Of the population at risk, of the 90 million or so,
or 95 million people employed in the United States, less than
three-tenths of 1 percent suffer anything like a reportable case re-
lated to repetitive motion injury, repeated trauma injury.

Mr. McINTosH. I guess, if that’s the case, is that also the most
frequent reported type of injury?

Mr. SaARVADI. It is the most frequently reported illness. It is not
the most frequently reported injury. Mr. Dear referenced some
700,000 cases a year. ‘That figure includes back cases, which can
be caused both by—at least in theory—by repeated trauma but also
by single events.

Somebody falls against the side of the table here and injures
their back, those get categorized that way, because when the sys-
tem was set up 25 years ago, we did not know enough about back
injuries to be able to do the diagnosis and causation analysis that
would allow us to distinguish between a back injury caused by a
single event and a back injury caused by repeated lifting or re-
peated activity.

And I think part of our problem is that, at least based on some
of the information coming out of the Health and Human Services
Low Back Pain Committee, that we still do not know enough about
back injuries, in every case, to be able to clearly segregate those
which | are repeated trauma and those which are single injury
caused.

So the real question that we have to deal with is, and one of the
difficulties in this area, is that these numbers keep getting thrown
out in very, very unspecific ways. We're not clearly stating the
problem. We've merged together all back injuries and all repeated
trauma injuries that are reported to BLS, in order to get the num-
ber up to a significant figure.

Clearly, there have been some situations recently where there
has been an increasing trend in reported cases. The question is
whether or not that increasing trend is the result of a real increase
in injuries. And in some industries, as illustrated by Ms. Berkowitz’
and Mr. Treaster’s testimony, there may be some industries where,
in fact, the number of cases is real and is increasing.

But, by the same token, there are, I think, a lot more industries
where the number of repeated trauma cases is not increasing; that,
in fact, lost workday cases today, as a percentage of total reported
cases, is about one-third, where, in 1983 or 1984, it was about one-
half of all reported cases.

So, while the number of cases seems to be relatively constant,
the total number of reported cases to BLS seems to be relatively
constant, the number of serious cases is dropping. And I think it’s
fair to ask whether or not we need a broad-based standard or
whether we need one that would focus solely on those industries
where there is a significant problem. Clearly, there is a way to get
at that question, and that is to look at the top 10 or top 20 indus-
tries that BLS reports.

Mr. McINTOSH. Maybe do it in a phased setting.

I want to respect the clock, so I want to turn to Ms. Slaughter.


170

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Le stresses resulting in or Hkely te
va travea disorders, on or about July .

‘other methods, one feasible and acceptable abatenent method te
inate or reduce this hazard is the implesentation of a

ive program for the prevention of cumilative trausa disorders. Such
program would include at least the following eleaents? :

A. Ergonoaic Surveys :
Perfora analysis and assessnent of all work operations to .
identify ergonomic stressors involved, including those
equipaent (tools, eachinery), work sathods, and environmental
origin, :

te Baeaat Robert R Fink Polat A,

NOTICE TO EMPLOYEES — The law gives an employes or

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36

We will take the comments we have received; we are analyzin;
them now. If we have the opportunity to develop a proposal an
publish it, we will do that, but we will do that when we have devel-
oped a standard which, in my judgment and the judgment of the
Secretary, is balanced and is a sensible strategy that has support
from reasonable people.

Mr. McINTosnH, I don’t mean to be putting words in your mouth,
but given between a yes and a no, the draft proposal is the working
draft that you are using?

Mr. Dear. I have to end up somewhere between that yes and no.
It’s being modified. 1 don’t know what the ultimate modification is,
so I can’t tell you if it’s more or less like what we saw in March.
The basic model—I don’t want to be obscure—the basic model, that
risk factors, like repetition, force, posture, and lifting heavy objects,
contribute to work-related musculoskeletal disorders, and that the
solution involves reducing or eliminating the risk factors, that basic
model is at the heart of the proposal; sure.

Mr. McInTosu. Let’s turn to that a little bit, then. Would you
say that you continue to take the approach that every job site
should be surveyed to determine whether or not those risk factors
are present?

Mr. Dear. No, no. You don’t want to create a regulatory obliga-
tion where there is no problem. That’s one of the major changes be-
tween the September draft and the March draft.

Mr. McINTOSH. How do you determine where there is a problem?

Mr. Dear. If you have injuries, if you have worker complaints,
if you have, by observation, work operations that involve these risk
factors. I believe everybod is knowledgeable enough, either as a
worker, about what they do, or employers, about how their oper-
ations go, to make an initial assessment.

Mr. McINTosH. So each employer or each employee would make
an assessment of the work?

Mr. Dear. It’s the employer's obligation. The best ergonomics
Programs always involve workers in identifying solutions.

ir. MCINTOSH. But the obligation is on the employer to survey
their work sites and determine whether they think there might be
a problem?

Mr. Dear. That’s true of every OSHA standard. That’s a basic
obligation under the act.

Mr. McINTosH. But it would be a general obligation, and then
the specific factors you would only apply once you determine there
potentially was a problem?

Mr. Dear. If you have no problem, you have no obligation. That’s
clear. Just that one—

Mr. MCINTOSH. My question is, what obligation do you have to
determine whether you have a problem?

Mr. Dear. Simple observation of the workplace. Do you have any
of these risk factors? Do you have any injuries or illnesses?

Mr. McINTosH. And these observations could be second-guessed
by an OSHA inspector?

Mr. Dear. Second-guessed, in the sense of —

Mr. McINTosH. If an inspection occurred at the work site, and
the OSHA inspector disagreed with the observation, would there be
a liability attached to that?


181

Evelyn Miller worked in a poultry plant on the Eastern Shore of Maryland
snatching guts until her hands began to go numb. She was diagnosed with carpal tunnel
syndrome in both hands ~ and given permanent restrictions. Her hands were so bad she
couldn't open baby food jars for her kids, hold the plates to set the table, or pick up pots and
pans.

William Buck worked as a meatcutter in a supermarket in upstate New York. All
the repetitive knife work on his job ruined his shoulder. He had to leave his job long before he
was planning to retire ~ giving up not only his lifes work, but his savings and his planned
tetirement.

Behind every statistic is a real person: a mother, a father, a neighbor. Workplace
injuries and illnesses are real, and they take a real toll on both this nation’s workers and its
industries,


48

and they are extremely interested in ergonomics, because they
know what it costs them in terms of Jost productivity and workers’
compensation costs.

In other words, I think there are plenty of incentives in the mar-
ket today to get employers to do the right thing. When you say,
“You're going to do that anyway,” it sort of does raise the question,
are we in proposing a $50 solution to a $5 problem?

I think industry has recognized and is recognizing more and
more the value toward ergonomics. In fact, I was at a software
company last Friday, and | think they have 500 employees, and
every single one of them, J think, has a computer terminal. They
have recognized that correct back support, correct elbow support—
or wrist support, if you will—increases productivity, reduces work-
ers’ fatigue, makes them more productive, all of these things.

I think the growing concern is, OSHA is now going to come out
with this sort of new “gotcha” policy that is going to just fall upon
unsuspecting employers. I wonder if you could just comment on
that basic expression: “You're going to do it anyway.” If employers
are going to do most of these things anyway, do we need a new
“Department of Ergonomics”?

lr, DEAR. I spoke of my own reaction because of the values I
bring to work, in terms of how people should be treated. I think
a lot of people who are in Government and the private sector bring
that same sense to work: You've got to treat people like you woul
like to be treated. You can get pretty far with that as an operating
principle.

The degree to which you can use market forces, workers’ com-
pensation expense to get good decisions, you should absolutely take
advantage of that. I mean, that is the most. powerful way we have
of encouraging sensible behavior. If that real ly worked, how can we
explain an increase in the incidence of repetitive motion disorders
reported by employers to the Bureau of Labor Statistics, from
22,000 in 1981 to 300,000 in 1993? I mean, something is not work-

ing.

‘There are lots of employers like the ones that you mentioned,
that take issues of health and safety extremely seriously and recog-
nize the contribution——

Mr. GUTKNECHT. Can I interrupt? How do you respond to that?
Have employers gotten 15 times more negligent in the last 20

ears?
» Mr. Dear. The information——

Mr. GUTKNECHT. No, no, no, no, not information. What is your
answer? I mean, how has that happened?

Mr. DEaR. Not everybody is getting the market signal that they
have a problem.

Mr. GUTKNECHT. We have it 50 times worse in the last 20 years?

Mr. Dear. That’s the report of employers. If you look at changes
in working conditions, the vast increase in the use of computers,
as you mentioned, faster line speeds in certain manufacturing es-
tablishments, you see reasons for that. Remember, cumulative
trauma is one subset of the larger issue, which includes back inju-
ries and others.

But let me get to this point. Look, there are some employers out
there that do a great job; they are way ahead of the Government


117

All of this is preparatory to the publication in the Federal Reg-
ister of a proposed rule, which would place us under all of the re-
quirements for notice, hearing, comment, revision, and so forth. So
we haven’t got that far.

Mr. SHADEGG. You have yet to begin that phase of the process?

Mr. Dear. I have not recommended to the Secretary of Labor a
proposal on an ergonomics standard yet. We have presented drafts.

fe have ideas, but I have not made a decision myself, nor has the
Department, to say, “This is the standard we are going forward
with.”

Mr. SHADEGG. How far away are we from when you would begin
that normal rulemaking process, where you would publish a notice
and say, “Here’s a draft”?

Mr. Dear. The situation today is that we could publish a pro-
posed rule, if the Office of Management and Budget—if the Sec-
retary of Labor presented a proposal for review to the Office of
Management and Budget, and they approved that proposal for pub-
lication in the Federal Register.

The situation may change, because the 1995 Recisions bill passed
by the Congress, and vetoed by the President, contained a proviso
prohibiting OSHA from publis! ing. a proposed rule, a final rule, or
any guidelines on ergonomics. If there is a resolution of that
recisions bill, my understanding is that that rider would still be in
there, and thus we could not publish a rule.

Last night, the Appropriations Subcommittee, in its markup of
the fiscal 1996 appropriation for the Department and for OSHA,
continued langu e which would prohibit promulgation of a pro-
posed standard. If that language stands, no, I’m not close at all.

Mr. SHADEGG. Would it be your understanding or your belief that.
the proponents of that prohibition on such a standard have seen
the current proposed rule, in whatever form you have it at this
point, the draft?

Mr. Dear. I don’t know. What I do know is that all of the things
we think are good about rulemaking, peer review, public hearing
and comment, building a record, reviewing it completely, using
science to justify a decision, hasn’t been done. All I see is Congress
saying, “Stop.”

Mr. SHADEGG. Why?

Mr. Dear. Not for any reason that we would use to promulgate
a standard, that you have determined, based on the best available
evidence, that there is no problem.

Mr. SHADEGG. You don’t see it as perhaps being determined by
the fact that Congress appears to be reflecting the will of the peo-
ple to have lost faith in OSHA or in this particular proposed rule?

Mr. Dear. There has been such exaggeration about the intent,
the effect, the possibility of a standard that people have been made
fearful of this Proposal without any underlying reason. Again, there
is no proposal out to say, “This is terrible.” And if sozne of the
things that are said about the standard, “There’s no science; there’s
no remedy; there’s no Problem,” were true, we would never make
an effective standard. There’s no judicial review we could survive.

Mr. SHADEGG. Well, there is a proposal out, in the sense that you
have one which you could submit, I believe, and I believe the chair-
man has a copy; isn’t that correct?


53

SUBMISSION TO THE RECORD ACCOMPANYING
STATEMENT OF JOSEPH A. DEAR
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, .
NATURAL RESOURCES AND REGULATORY AFFAIRS
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
JULY 12, 1995

I. ERGONOMICS SUCCESS STORIES

II. LETTERS AND PETITIONS TO OSHA
REQUESTING AN ERGONOMICS STANDARD


188

KELLER AND HECKMAN

July 12, 1995
Page 3

know, statistics can be slippery things, telling one story when viewed through one facet of
the lens, and telling a totally different story from another perspective.

The flaw in OSHA's story is that, while the facts are objectively true, it is not the
whole truth. And the untold parts of the entire story paint a far different picture.

Let's start with OSHA's primary claim: a big increase in the number of cases
resulted in a large percentage increase in ergonomic-related injuries -- a disturbing trend.
‘An increase in any measured characteristic can appear to be large if the base from
which one is measuring is small. In the case of repeated trauma cases, the absolute
number of reported repeated trauma cases in 1985 was very low -- less than 0.1% of
employees affected in a working population of roughly 81.5 million. By 1992, the total
number of repeated trauma cases reported increased to approximately 0.3% of
‘employees in the roughly 90 million employees in the covered private sector workforce.
These data represent all reported cases where an employee received more than nominal
treatment -- first aid -- for any strain or sprain or soreness, under the direction of a
medical practitioner -- a physician, a chiropractor, or a nurse acting under the orders of
a physician. So when OSHA talks about the rapid rise in the number of cases, they
include not only those cases where severe injury occurs, but also cases with no lasting
impact. But for the sake of the present discussion, we can concede that it is good to
keep track of ali these cases.

There is another deficiency in the data that OSHA does not discuss. The
category of illnesses known as repeated trauma includes an unknown number of persons
with apparent hearing loss. In other words, under OSHA's illness and injury reporting
rules, hearing loss cases are reported in the same undifferentiated category as cases of
repetitive stress injuries (RSI). RSI ~ as we have come to know them through the
popular press -- include conditions such as carpal tunnel syndrome, trigger finger, and
similar conditions and constitute some fraction of the total number of cases. But what
fraction is unknown. Isn’t this a question that BLS and OSHA should answer before
OSHA creates a new, complicated regime of regulation that affects all of America’s
workplaces? Of course they should.

Another part of the story is also left untold. It is far from clear whether the
statistical increase in the reported cases reflects an increase in real injuries. There is at
least some evidence that the reported increase is largely the result of the change in
OSHA policy, coupled with the dramatic increase in enforcement efforts designed to get
industry's attention. As the Members may be aware, multi-million dollar penalties were
often assessed for failure to record cases of repetitive trauma properly according to
OSHA's then new criteria.

Beginning in 1985, OSHA made a concerted effort to require employers to treat
certain conditions which previously had not been recorded as recordable cases. Setting


49

in terms of doing this. There are a much larger number of employ-
ers in the middle, which is, “Help. If this is really costing me
money, get me some help. Show me what I need to do.

And we have a host of initiatives in the reinvention of OSHA
that are designed to improve our ability to respond to that or to
leverage resources with consultation programs we fund, or insur-
ance companies that provide advice to employers.

There are still a group of employers that, absent enforcement,
will do nothing. They will try to externalize the cost of injury and
illness. They will let the worker go who is hurt and try to hire an-
other one. And then that cost of medical treatment is borne some-
where else in the system.

So we need a policy of safety and health enforcement, and we
need standards that provide guidance as to what is minimally ac-
ceptable and provide a process for determining conditions which
are below that standard and an ability to enforce.

I am as aware as anybody that an agency that has $312 million
in potentially shrinking budget, and 2,300 people, and 6 million
workplaces, and 95 million workers to worry about, that we have
to do more than enforce, if we're going to try to improve conditions.
But I am also convinced, if we just rely on market incentives, that
we will produce more injury and illness than we would if we had
a sensible, balanced strategy.

Mr, GUTKNECHT. Well, on that we do agree. I think we need a
sensible, balanced strategy. The fear, I think, on this side of these
desks up here is that “sensible” and “reasonable” are terms that
are rare toward the regulatory process in this country. And I’m cer-
tain the calls we get are not the people who are pleased and satis-
fied with the service they have had. I mean, that’s the nature of
this business.

Mr. Dear. If I might, just one other point. One of the things we
put in our March proposal was a grandfather clause. It said, if you
are already doing something about work-related musculoskeletal
disorders, you have an ergonomics program, terrific. If you are get-
ting results, you are done. You have no additional requirement at
all from this proposal.

When I met with employers after those meetings, they said, “We
looked for the grandfather clause; we didn’t see it. We looked at the
requirements that you had, and we looked at your statement.”
There was a disconnect.

I took that as information saying we had the right intention, a
grandfather clause: If you have a program and youre getting re-
sults, you're in great shape. And the detail necessary to spell that
out clearly, reliably in the text, that’s one of the benefits of the
whole effort we are undergoing of working, thinking, discussing, re-
vising.

That says to employers like the one in your poultry plant, “You're
doing great,” if they are getting results.

Mr. GUTKNECHT. So I can tell those people they don’t have to
worry about this.

Mr. Dear. If they’ve got a program.

Mr. GUTKNECHT. If they have an ergonomics plan, this will not
affect them.

Mr. Dear. That’s right. That’s my intention.


8

A4G-75

Desar Mr. Secretary:

I am Ramona Figueroa. My knees are sick due to kind of work I made.
Now I walk hardly and I cannot be standing many minutes. I am very
depressed due to this problen.

Mr. Secretary, we ask your support for the government to give
standards to improve workplaces to prevent these problems. We want
better chairs and knowledge about chemical products, for example.

Mr. Reich, we invite you to visit any factory here, to look at
problems we have.

Sincerely yours,
Ramona Figueroa

1018 E. 163th st.
Bronx, N.Y.

1
a


88

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43

times the education is a reminder that there is a legal obligation
to provide a safe and healthful workplace.

Mr. McInTosH. That’s where you go beyond education and have
a very strong potential that you, in fact, aren’t making a cost-effec-
tive decision on that, because you have a different legal regime to
deal with. We do disagree on that.

Let me now turn to my colleagues.

Mr. Peterson, do you have any questions?

Mr. PETERSON. Yes, Mr. Chairman. Thank you.

You know, I represent a district that has some meatpacking
plants, and I’ve been through some of those facilities. Clearly, it’s
a dangerous job, and it’s a difficult job, and you're going to have
these ergonomic problems, I don’t care what you do, if you have
people doing these jobs. I think most people recognize that.

lam all for us doing whatever we can to eliminate these injuries
and to do sensible things, My concern is that we are going to end
up, at the end of this, doing things that are not sensible, which is
my—I just, frankly, am tired of answering my telephone and hav-
ing people tell me about stupid thin, at regulators are doing
that are making things worse rather than better.

I am, frankly, skeptical, at the end of this process, that we're

‘oing to end up with something better. We're going to end up doin;
things to undo some of the good things that have happened, an:
we're going to end up doing things that are going to actually put
people out of work, such as the chairman has been talking about.

And I heard you just say that it’s a good idea that you should
communicate with these other agencies. I mean, did this just occur
to you today? I mean, that makes me even more skeptical, you
know, about this whole situation.

So, you know, the point that the chairman has been talking
about, in terms of, if this makes economic sense, these folks are
going to do it, it seems to me. And I think they have been doing
it. In the meatpacking industry, as I understand it, there has been
a lot of voluntary effort that has taken place where there has been
a substantial reduction in these injuries and there has been sub-
stantial improvement. Is that not true?

Mr, Dear. That’s true. But there was also vigorous enforcement
by OSHA and multimillion-dollar penalties levied on the industry
to bring their attention——

Mr. SON. So nothing happened until that——

Mr. Dear. After that, OSHA worked with the industry and with
the labor organizations representing meatpacking workers, and de-
veloped guidelines. These guidelines are implemented by employ-
ers, some because they have to, as a regulatory obligation; some
voluntarily. Because if they do that, they know they are going to
solve a problem, and they lon’t have to worry about any regulatory
compliance activity by OSHA.

So I don’t think it started willy nilly. I mean, there was a reason.

Mr. PETERSON. No, I understand that. And there are some com-
panies that had to be forced into this. There were other companies,

think, that were ahead of you, frankly.

Mr. Dear. Absolutely. Yes.

Mr. PETERSON. And that’s my point. What I’m concerned about
is that we don’t do something here that’s going to undermine the


129

long latency periods make the marketplace itself an unreliable
regulator.

This is not to say that there are no repetitive injury
problems in any sector of the American economy. Rather it is to
say that if there are such problems, they have not been
identified with any scientific or medical confidence. I am told
that NIOSH is now commissioning some basic research on the actual
problem itself -- and that research should proceed quickly so
that scarce resources are not wasted in a scattershot fashion
indiscriminately across the whole spectrum of the American
workplace.

A couple of other points are worth making. The main

reason why we insisted on performance standards was less for the

protection of so-called big business than for the protection of

small business, the worker and the consumer. Indeed, contrary to

popular opinion, big busin is over the short and intermediate
term often the beneficiary of regulation because it constitutes a
relatively unfair burden on, and an entry barrier to, competition
by small business. Accordingly, there are situations where big
business mistakenly supports regulatory approaches it is in their
long term interest to oppose because of the long term adverse
impact on international competitiveness. This shortsighted

response is often referred to as rent-seeking -

that is, the

taking advantage of a rule for parochial competitive reasons that

have nothing to do with the public health or safety goal of the
rule itself.


113

cupation safety and health. Have we begun to look at the issue of
health counsel hng under OSHA? Mental health, I’m talking about.

Mr. Dear. No. We've worked and will be publishing shortly what
we call an action list of priorities for regulation and honregulatory
interventions. It’s a systematic effort involving industry, labor, pro-
fessional organizations, and academia to use our knowledge of
what hazards are out there, of risk assessment, to get a priority of
what should be addressed.

In the case of ergonomics, a problem which has an estimated eco-
nomic impact of $20 billion, that affects hundreds of thousands, if
not millions, of workers. I mean, I think we have a problem of suf-
ficient dimension to do it.

Now, you said the job is difficult in the sense—you portrayed it
as having to second-guess all the employers. I kind of feel like I'm
trying to herd cats. Gnd the question is, how do you structure in-
centives, whether they are enforcement or guidance or policy, in a
way that achieves the result?

e act makes it the responsibility of the employer and the work-
er to, work in a manner which is healthy and safe. It gives to

Mr. SHADEGG. But then you get to determine that. You get to de-
termine what is healthy and safe.

Mr. Dear. It gives to OSHA the authority to develop standards,
to enforce them, and to educate and train. We've taken that one
step further. We try to recognize models of excellence. We have a
program called the “Voluntary Protection Program” that recognizes
the best in safety and health, a very difficult program to qualify

for.

I almost doubled the participation in the program last year, be-
cause I thought, “My goodness, this is something terrific, because
this shows what is possible.” And models of excellence can help.
The companies participating in this program are establishing what
they call mentoring programs to help other firms in their geo-
graphic areas.

Your State, Arizona, which has a State plan, recently decided at
the State level to adopt a similar kind of program.

Mr. SHADEGG. If you are not second-guessing those employers,
should we consider making all of OSHA regulation voluntary? I
mean, otherwise, we are, in fact, second-guessing them, are you not
or are you? It seems to me you are.

Mr. Dear. I mean, that’s a contradiction, a “voluntary standard,”
a “voluntary requirement.” I mean, at some point, you can’t
have—

Mr. SHADEGG. If the program is best driven by economic incen-
tives, by this gentleman iscovering that he could save money,
what would have been the reason why you could not have gone in
and said, “Look, we have this voluntary standard, and, oh, by the
way, the economic side effect of it will be that you will save X thou-
sand dollars”?

Wouldn’t we then have a more voluntary arena or a more recep-
tive arena in which you could come forward with your ideas, as op-
posed to what I sense in Arizona—in Arizona, my constituents are
telling me, “OSHA does nothing but second-guess us, and wrongly
so, in most instances. What can you do to reform them?”


122

And, you know, people invite me to come talk about ergonomics,
and I show up and do that, and so do a lot of the staff.

We are doing a negotiated rulemaking on another rule, under the
Negotiated Rulemaking Act, involving steel erection, so I’m quite
familiar with that act. And we haven't concluded that, but I’ve
been extremely pleased with how that negotiated rulemaking is
going. Even if the group is unable to produce a consensus, we're
still going to have a much better standard because of that intense
involvement.

There are other opportunities for less structured, say, informal or
consensual rulemaking, where you are bringing people in earlier to
get the information, rather than to try to get it exactly right in the
proposed rule and then only allow communication in the very struc-
tured, formal, requirements of rulemaking under the Occupational
Safety and Health Act or the Administrative Procedures Act.

I mean, we have been very careful to observe the requirements
of the Advisory Committee Act. We have also involved the Statu-
tory Advisory Committee on Construction Safety and Health, and
they are looking at this issue in connection with the construction
industry, and we may involve our National Advisory Committee on
Safety and Health, which are FACA——

Mr. SHADEGG. Are you using the Advisory Committee Act for this
rule or not? Because I thought I heard you say no.

Mr. Dear. You're under FACA all the time.

Mr. Woopwarp. I think what we're also talking about, there is
a separate standing advisory committee for construction, created by
a statute. This is sort of separate from—I understood the chair-
man’s question to be about the so-called “stakeholder meetings.”
But separately from that, there is a permanent group of people,
representing business and labor, who form what is called the Con-
struction Advisory Committee, and we have given a copy of the
standard to them.

Mr. SHADEGG. I guess my concern is about the stakeholders and
about how people get into this particular rule and try to affect it
and participate in the process. As I understood what you said be-
fore, we’re not really in a rule yet.

Mr. McINTosH. Tet me ask this: Are there people who have re-
quested to be part of the stakeholder process who have not been
able to participate?

Mr. Dear. I’m not personally aware of anybody who requested—
that may have happened. I’m not telling you—but nobody who
asked, me, “Can I come to the meeting,” was told by me, “No, you
can’t.

Mr. MCINTOSH. One of the things I’m concerned about—I think
it’s great that you listen to people and try to hear as many view-
points as possible, but we also have to preserve the process and
make sure that everybody is given an equal chance to have their
voice heard, and also that the public knows which voices are heard
and what those voices expressed in the rulemaking process.

The purpose of my question is to put a caution there, as these
meetings take place, that there is a sense of fairness in the public
on that.

Mr. Dear. Well, if you take a look at the list of people who par-
ticipated, I think you will see that we had a rather broad spectrum


127

unclear to me as a layman that there is any widespread ergonomic
risk at all, let alone one that is significant. It is not even
clear what the proposed rule is talking about at the outset. The
database of purported ergonomics injury, for example, appears to
include noise related hearing impairment, lower back pain, as
well as a number of other conditions which may not be work-
related at all. Even if we were told clearly what injury or
injuries we were trying to avoid and how many there are, and how
many occur as a normal result of just daily living, we are not
told with any precision what activity levels of what kind will
produce the targeted injuri

There is, in other words, no risk

ent of the so-called dose-response relationship to provide
any guidance for altering conduct. Indeed, OSHA staff appear to
be trying to abandon the concept of dose-response entirely, thus
repealing one of the basic tenets of medicine (as well as their
enabling statute).

Perhaps this is not surprising. If you don't know what
harm you are trying to avoid, it is pretty difficult to spell out

the steps ne

ary to avoid that harm. So what we are presented
with is a list of risk factors for virtually every activity of
our professional (and private) lives that leads nowhere but to
enhanced opportunities for enforcement harassment by OSHA

inspectors operating without any supervisory guidelin At

least today in a general duty clause c:

, OSHA must make a
credible scientific showing that activity A caused a medically

recognized problem B. If this rulemaking had gone through, it


151

(4) Guidelines are included for medical management, which are
inconsistent and depart from OSHA’s previously accepted
approach, and the NIOSH lifting equation is of: or
use, although it has not withstood scientific validation.

(5) The OSHA preliminary risk assessment justification relies
on studies of symptoms and workers compensation data of
dubious quality.

Definition of cTDs

The term CTD is not a medical diagnosis and OSHA has
arbitrarily included numerous disorders whose underlying causes are
multifactorial. More importantly, OSHA’s proposal allows symptoms
to be used as a basis for determining the presence of a work-related
condition. Clinically speaking, it is difficult to distinguish
between fatigue, discomfort and pain and the determination of
whether OSHA can and should classify highly individualistic
responses, such as fatigue and discomfort, as significant health
events, should also be examined. Further, OSHA extends its
definition to include aggravation of underlying disorders. It is
hard to imagine anyone with pain or other symptoms not potentially
aggravated by myriad work and non-work related activities. However,
this is really the province of the Americans with Disabilities Act.
Yet, the question remains of how industry can be responsible for
producing a workplace where everyone will be pain-free, especially
if they already have a preexisting condition.

Ergonomic Risk Factors

It has been postulated by various researchers and clinicians
that risk factors such as repetition, force, body position,
vibration and others are associated with the production of CTDs.
However, without clear data to indicate which factors are important,
in what combination and at what levels, industry, in essence faces
regulation without a "permissible exposure level" (PEL) to know what
a safe level for each factor and for groups of factors should be for
performing a given work task. The proposed OSHA triggers are not
based on scientific studies, which give clear guidance as to what
might be safe. OSHA states this within their proposed standard and
does not offer any insight as to how their exposure level triggers
were derived. The few scientifically usable studies, which have
attempted to address these issues, potentially identify a
combination of high force and high repetition; but, again no clear
guidance is realized from the data published to date. Thus, at the
present time industry would have to guess at triggers from an
exposure standpoint or use arbitrary, general (i.e., not situation
specific) ones established in OSHA’s draft.


155

Mr. McINTOosH. Thank you very much, Dr. Sandler.

Our next witness—did you want to go forward, Ms. Berkowitz, or
Mr. Treaster?

Mr. TREASTER. It doesn’t matter to me.

Ms. BERKOWITZ. I think he can go forward.

Mr. McINTosuH. Mr. Treaster.

Mr. TREASTER. Good afternoon, Mr. Chairman, members of the
committee.

My name is Rick Treaster. I’m the president of Local 2400 of the
Union of Needle Trades, Industrial, and Textile Employees. Ive
written a long statement. You said you would put that in your
record, so I will try to summarize this as briefly as I can.

I work at Masland Industries’ plant in Lewistown, PA. Masland,
the company I work for, is the largest supplier of carpeting to the
auto industry and has seven plants in six States. Many people
today are talking about cutting back on OSHA and doing different
things with the standards. I’m here to tell_you about the good
things that happened in my plant because of OSHA.

T'm here because I’m worried, from my own experience, if you do
cut back on the regulations and the standards, about the injuries
that can happen to the workers. It also may cause employers to pay
out large amounts of workers’ compensation, and that may cost em-
Pioyees their jobs. This money could be reinvested into machinery
or into more paying jobs for American workers.

I worked in the molding department of Masland for over 16
years. About 6 months after I started, the company put in an in-
centive pay system, the Maynard system. Everything was based
on—the production was based on speed and physical effort. A mold-
er could swing a hammer 4,000 or 6,000 times a night.

I brought one of the hammers with me. This is one of the tools
we use. It’s two lead pipes welded together. Obviously, our acci-
dents, our injury level was very high. I'll pass—if you want to see
it, you could——

Mr. McINTOSH. I would like to. Someone can grab it.

Mr. TREASTER. OK. I'll keep talking while she is coming.

Mr. McINTos#. Thank you.

Mr. TREASTER. Because of the speed we worked with those ham-
mers and the number of times we used them, a lot of our people
were hurting every day. Being a young man, and young men 20,
21 years old, we used to laugh when we would wake up and
couldn’t open our hands. We thought that was kind of a funny
thing. Now, reaching 35, when I have to force my hand open, it’s
not quite so funny anymore.

People worked like that to support their families—like I said, a
lot of young families. People felt like they were just machines. If
we broke, the company would replace us.

Finally, a worker did file an official written complaint with
OSHA, and they came in and did an inspection. OSHA found in our
plant that we had man; ergonomic hazards and they were very se-
rious. There was no OSH ergonomics standard at the time, so
OSHA used the general duty clause, and they could only use that
because of the number of injuries we had in the plant.

I would hate to think, if we wouldn’t have had quite that many,
how many people would have been hurt until we would have


CONTENTS

Statement of:
Dear, Hon. Joseph A., Assistant Secretary of Labor for Occupational
Salet and Peeaith, US. De tment of Labor; accompanied by Jose; h
loodward, ‘Associate Solicit licitor, Occupational ‘Safety and Heeith
.S. Department of Labor
sea Esq., David, Keller and Heckman; Howard Sandler,
resident, "Sandler Pecupational Medicine Associates, Rick
‘easter, president, Local 2400, Amalgamated Clothing and Texte
Workers’ Union; and Deborah Berkowitz, director, Office of Occupa-
tional Safety and Health, United Food and Commercial Workers Tnter-
national Union ..
Letters, statements, etc, submitt
Gray, C. Boyden, partner, Wilmer, ‘Cutler & Pickering and chairman,
Citizens for a Sound Economy, prepared statement of
Berkowitz, Deborah, director, Ofhee of Occupational Safety
United Food and Commercial Workers International Union,
statement of
Dear, Hon. J ry
Salety and Health, U.S. Department of Labor, prepared statement

Man pre
of Indian Rowe statement of
Sandler, M. ward M., president, Sandler ‘Occupational Medic
Associates, ‘pared statement of ...

Sarvadi Een, eer er and Heckman, p prepared statement of .

, Hon. “Christopher, a Representative i in Congress from the State

She Connecticut, pre} statement of
Treaster, Rick, president, Local 2400, Amalgamated Clothing and ‘eatie
Workers Union, prepared statement of

am

133

125

175

15

148
136

159


145

KELLER AND HECKMAN
July 12, 1995
Page 10

knowledge OSHA has rarely used this authority. In addition, the Federal Advisory
‘Committee Act permits the executive to seek input from experts in a systematic fashion.
But both the FACA and the OSH Act require such committees to operate in the open,
with meetings, agendas, and to a limited extent, public participation. Congress provided
these tools for a reason. I am sure I am not alone when I say I would have been happy
to participate.

I would like to thank the committee for making this time available to me, and I
would be happy to answer any questions.


106

Ergo Stakeholder Meetings/Outreach, page 11

Occupational Health and Environment Conference
Office of Personnel Management Annual Conference
Organization Resource Counselors

Peninsula Business Association

Purdue

Shipbuilders Council

Society for Human Resource Management
Telecommunications Industry

Traveler’s Insurance

United Auto Workers

United Food and Commercial Workers Union

United Rubber Workers

Voluntary Protection Programs Participants’ Association
‘Wal-Mart

Washington Business Group on Health

Wisconsin State Occupational Health Nursing Conference
Workplace Health & Safety Council


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52

Mr. OWENS. I serve as the ranking member on the Subcommittee
on Workplace Protections of the Economic and Educational Oppor-
tunity Committee, and we are, of course, xery interested in this
subject and have had some hearings on OS) which were much
broader and more general, didn’t get as specific on the subject of
ergonomics as we would have liked to.

would like very much to be able to have access to your tran-
script and be able to use that in the future. ’'m sure my committee
will also be happy to give the transcripts for our hearings.

In that vein, I also would like you to indulge me a little further
and ask unanimous consent to submit for the record a submission
made by Mr. Dear, which includes ergonomics success stories and
letters and petitions to OSHA requesting ergonomics standards,
and also a letter that I have a copy of, from Mr. Dear to you, which
explains in great detail, more detail that I have seen before, the
process by which they include consultation with the stakeholders.

I think the thoroughness of that process is to be commended, and
it would be good if we had a record of how that is accomplished.

Mr. McINTOSH. Seeing no objection, we will definitely put those
in the record.

(The information referred to follows:]


173

Reagan and President Bush, and started doing major enforcement
cases, that industry began paying attention to them.

Nowhere is this sort of brought home more than in the industry
we represent, in the meatpacking industry, which was bleeding
from the cost of work-related injuries and illnesses. And you know
very well that meatpacking and poultry have a very, very slight
profit margin, maybe 1 percent.

Yet, despite the high incident rates and the enormous cost in
workers’ comp and lost profit activity to this industry, which we
constantly kept documenting to the industry, it wasn’t until OSHA
got involved that the meatpacking industry and poultry began to
take action to prevent these disorders.

In fact, Kenny Monfort, who is about to resign as the head of
Monfort, which was the largest meatpacking company, and the
head of the American Meat Institute at the time, said in an inter-
view that it wasn’t until OSHA started keeping statistics that they
realized how bad they were on cumulative trauma disorders.

In 1988, OSHA cited the largest meatpacker at the time, IBP, for
failing to reduce cumulative trauma disorders. What was more
noteworthy than the fact that it was a $1 million fine was the com-
pany’s response. The company settled the case with OSHA, dropped
their challenge, and began an unprecedented and highly successful,
multiyear effort to reduce disorders in the 20 plants that they
owned.

The results were dramatic. The incident rates were halved. Sur-
gery rates dropped by 40 percent. And even more, the company’s
workers’ comp cost dropped dramatically, over 50 percent, from
1988 to 1993, saving the company millions and millions of dollars.

After this experience, OSHA went in to 20 other meatpacking
and poultry plants, including some in Indiana, over the past 7
years, and found the same extent of violations. Even though IBP
was successful, it didn’t carry forward. But the sort of wave of
OSHA action did move forward, and companies started putting in
programs.

In the wake of all the OSHA activity and the accompanying news
media, many companies started doing this voluntarily, companies
like AT&T, General Electric, John Deere, and Red Wing Shoe in
Minnesota. In each of these companies, the cumulative trauma dis-
order rates went down, and the company saved money.

Now, other witnesses have come before this committee today and
argued that cumulative trauma disorders may not be terribly real
hazards, or it’s very hard to figure out when it’s really a disorder
and it may just be fleeting pain, but the experience of corporate
America is very different.

Why would companies like Levi Strauss, IBP, Ford, GM, and
Sara Lee spend so much on abating these hazards if they weren't
real? Not only are these real hazards, but you can put in real solu-
tions, and you can save money.

One of the things that I invite you to do is to come to work in
a meatpacking plant or a poultry plant to do a job like pulling leaf
lard or chuck boner, and then you will get a sense of how you know
when there’s a CTD that is going to occur and what a job is like
that can cause a CTD.


101
‘Ergo Stakeholder Meetings/Outreach, page 6

Town Meeting
March 24, 1995
Detroit, Michigan

American Axle

APT Industries

Armour, Swift & Eckridge

Auto Alliance:

Chrysler Motors Corp

Dept. of Management and Budget
Frigidare

Hayes Wheels International
Health Central

Human Solutions

HumanTech

Industrial Strainers

Kelsey-Hayes

Knape & Vogt Manufacturing
Michigan Industrial Hygiene Society
Michigan Dept. of Public Health
Safety Services

UAW-Ford STC

UAW-GM Health and Safety
Woodbridge-Whitmore

Professional Associations
March 27, 1995
Washington, D.C.

American Physical Therapy Association

American Industrial Hygiene Association

American College of Occupational and Environmental Medicine
American Association of Occupational Health Nurses
American Society of Hand Therapist

American Occupational Therapist Association
American Society of Safety Engineers

Human Factors and Ergonomics Society

Institute of Industrial Engineers

Massachusetts COSH

National Safety Council

New York State Department of Health

University of Massachusetts-Lowell


26

History of O8HA’s Involvement in Ergonomics

While I have made development of a proposed standard to
address ergonomically-related hazards a priority in my tenure as
Assistant Secretary, the identification of the problem and the
determination that there is a need for a standard and other non-
regulatory activities were made by my predecessors. In fact,
OSHA has been actively pursuing issues related to ergonomics for
more than 15 years.

The primary tool available to the agency in the absence of a
standard is the employer's responsibility under the general duty
clause, section 5(a)(1) of the Occupational Safety and Health
Act, to provide a safe and healthful workplace. In the late
1970's, the agency began to issue general duty clause citations
to employers in various industries where work-related
musculoskeletal disorders were occurring. Over 400 cases have
been completed, and the vast majority of them were not contested
by the cited employers. Thus these employers accepted the
existence of a problem, and were able to abate the hazards using
available feasible methods. OSHA began training compliance
officers and consultants in ergonomics in 1983, issued guidance
for its field staff in 1986 and 1987, and established ergonomic
coordinators in the regional offices at that time.

Beginning in 1988, under the Reagan Administration, OSHA
entered into a number of corporate-wide settlement agreements

with large companies which had multiple facilities with similar

operations. Two industries received considerable focus in that

12


22

levels of education. We have provided copies of some of these
letters for the record.

Many of the most severely impacted employees are those who
are also the most disadvantaged members of the workforce. They
have little education or training to allow them to perform other
types of work. Their wages are low and thus compensation for
injuries, when received, is even lower. And they are frequently
women or members of other minority groups. Garment workers are
an example of a worker population that has serious problems. One
story we received told of a garment worker who stitched shoulder
pads, and whose pay was determined by the number of pieces
completed. In order to earn enough money, she had to complete as
many pieces as possible. She eventually reached the point where
she could hardly move by the end of the day. As the damage to
her body progressed, all aspects of her life were affected. Now
she not only cannot work, but is unable to comb her hair, button
her clothes, or brush her teeth.

Late last year, Wall Street Journal reporter, Tony Horwitz,
described his experience working in poultry processing facilities
in an article that recently won a Pulitzer prize. Mr. Horwitz
experienced firsthand the difficult conditions under which this
work is performed: "Packed tightly and working quickly with
knives and scissors, workers often cut themselves and others.
Floors that are slick with wash water and chicken bits add to the
hazard. And though most tasks at first appear undemanding, if

unpleasant, they quickly become grueling as the same motion is


105

‘Ergo Stakeholder Meetings/Outreach, page 10

Selected Outreach Presentations

AT&T

Advisory Committee on Construction Safety and Health
AFL-CIO Ergonomics Committee

American College of Occupational and Environmental Medicine
American Dental Association

American Healthcare Association

American Meat Institute

American Medical Association

American Newspaper Association

American Petroleum Institute

American Public Health Association

American Society of Safety Engineers

American Warehouse Association

AMOCO

Association of Occupational and Environmental Clinics
Center to Protect Workers’ Rights

Chemical Manufacturers Association

Dallas Re-insurance Limited

Department of Defense

Department of Energy

Department of Labor Low Wage Worker Conference

Federal Agency Safety and Health Conference

Federation of American Health Systems

Florida Safety and Health Institute

Ford Motor Company

Foodservice & Packaging Institute

General Motors

Graphics Arts Association

International Conference on Occupational Disorders and Upper Extremities
International Sleep Products Association

Maryland Public Health Association

Mine Safety and Health Administration

NAFTA Albuquerque Conference

National Advisory Committee on Occupational Safety and Health
National Association for Home Care

National Association of Manufacturers/Center for Office Technology
National Association of Manufacturers--Ergonomics Coalition
National Disability Management Association

National Federation of Independent Business

National Grocers Association

National Joint Committee on Health and Safety

National Paint and Coatings Association

National Safety Council

NIOSH


162

On the hands-free molds, it was harder at first. Masiand started doing it with
no worker involvement, and thelr designs didn't work, Eventually, through trial-and-
‘error they allowed the workers to have more input and it has worked pretty well since
then. Now, whenever there's a new “platform”, they ask the workers and we help
design the new system together. The lesson from this is clear: without the People's 's
involvement, the new automated design never would have worked,

There were some other problems, however. The new work involves more
material handling because of the change in individual workers’ workloads, The
company then upped production and the number of back injuries shoulder strains went
up. So we then had a new — but less serious -- set of problems to deal with.

‘What did this conversion to “hands-free” cost? At first, it looked to the company
like @ jot of money. So when they made the commitment in the OSHA Settlement
Agreement, it was a big deal. They looked first to the molds with the highest rates of
injury. Then, they progressed to the other molds. Today, only a few cut-and-hammer
tools remain. if you ask the company, they'll tall you that even though they spent
thousands of dollars, thay made It back many times over in higher productivity,
reduced workers compensation costs and better quality.

The company had other good reasons to spend the money on converting the
moids. But it was clear to all of us that if it were not for OSHA, they would not have
made the switch. OSHA was the major reason — the other reasons, like workers
compensation costs, productivity or lower labor costs, were not good enough by
themselves,

in fact, here's what the management at Masiand said about this last month in a
letter to Chairman Kassebaum of the Senate Labor and Human Resources
Committee:

Masiand Industries supports [my] testimony ... the relationship we have with his
union and with OSHA was the dominant factor in the success that [!} portray to
your committee.

mT iat Safety Commit

What were the results of the ergonomics program? Overall the effort was very
successful, As | said, we had fewer injuries, but the injuries are different -- not a
“wear-out" type injury as in the past, but more serious back injuries with longer periods
of lost time than before. Due to the automation, we did less hammering and cutting —
but more material-handling.

In 1991, we started for the first time a real joint Safety Committee. Finally, we
aimed for prevention, not just investigating injuries or accidents after the fact. The

3


165

This means pot just guidelines, not just consultants, not just recommendations.

This means a real OSHA Ergonomics Standard, and a real enforcement
program to back it up.

‘We can't make inspectors wait until after people are injured or killed to take
action. That doesn't help workers and it doesn't help employers, either.

I know, because my brother just recently suffered a serious hand Injury at work,
Workers and companies in dangerous jobs need help to prevent injuries, not just
penalties after workers are killed of injured.

People in Washington don't understand how importent this Is to workers in
Pennsylvania and around the country. But | know the people | work with, and | know
the people who work for Masland Industries in Carlisle, PA.

And | know that whoever they voted for last year for Congress or Senator, they
ne At ith if ds an Tat

And they never voted to let companies violate safety standards without even 4
slap on the wrist.

Maybe Chairman Clinger and Congressmen Fox and Gooding think that
Pennsylvania workers don't deserve to work in safe plants. But | think most
Pennsylvania workers believe they deserve safe jobs.

| believe that Representative Kanjorski supports the right of Pennsylvania
workers to have safe and healthy jobs.

And what about workers in Indiana. (see attached statistics from the U. S.
Bureau of Labor Statistics.) Over 200,000 indiana workers are Injured on the job every
year. Almost 100,000 of these injuries strike workers in Indiana's factories — making
‘everything from plywood to auto parts.

Even worse, over 80,000 Indiana workers are disabled from these injuries every
year. tn fact, about 25,000 Indiana workers suffered back injuries and repetitive motion
injuries every year -- most of them In Indiana factories, hospitals and nursing homes.

Many of these indiana workers suffer injuries that could have been prevented if
there were 8 real OSHA Ergonomics Standard ~ a standard that would get companies
and their unions and thelr workers cooperating to fix the problems before the problems
turn workers into victims.


169

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from the tasks that they wore perferi and adainistrative or engi- ‘STEP 43
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(a) Molding Area, Gantries Number 1 through 13 - Molder(s)s
waking autoaobile fleor and trunk carpets, which involves.
a variety ef repetitive, stressful motions of the hands,
wrists, ares and shoulders, were exposed to ergonoeic
‘stresses resulting in or likely to result in cumulative
trauma disorders, on or about July 24, 1989. 7
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ROTICE TO EMPLOYEES — The law ghos an exgloyes o (ATION UNLAWFUL — The ew
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34

the documents at an early stage. We would look forward to the
rigorous peer review which typically follows publication of an
OSHA proposal. Following publication of the proposal, there
would be a period for written comments, and a public hearing to
allow oral testimony, A post-hearing comment period would also
allow hearing participants to provide additional information, and
their summaries of the proceedings.

Yet despite this careful process, efforts are being made to
stop the rulemaking. OSHA believes that the best way to conduct
a thorough public debate on this critical problem, and to arrive
at the most appropriate, effective and feasible solution, is to
proceed with our open, deliberative process. But intervention at
a very early stage in the process precludes the majority of the
public from participation, and may prejudge the issue without
regard to the facts. This is not in the interest of either good
regulation or good science.

OSHA would be happy to provide any additional information we
have to further these discussions. Ultimately, however, we
believe that the well-founded and balanced public process of
addressing ergonomics should be allowed to continue in the
interest of protecting workers and for the benefit of concerned

employers as well.

20


175

Testimony of Deborah Berkowitz
Director, Office of Occupational Safety and Health
United Food and Commercial Workers International Union

Before the
House Subcommittee on National Economic
Growth, Natural Resources and Regulatory Affairs
Room 2154, Rayburn
Committee on Government Reform and Oversight
on
OSHA's Regulatory Process and Activities Regarding Ergonomics,

July 12, 1995,


115

tations of workers in the plant in 13 months. The Police Depart-
ment called us up and asked us would we go inspect that facility.
The case is pending currently, but we assessed them a penalty of
$1.3 million.

Mr. McINTosH, After the 13th amputation?

Mr. DEaR. Well, we didn’t get in there until the 13th—the 10th—
10 in 13 months. But that’s a case in May 1995. Two Products Co.
also. I mean, these are companies and firms operating, I think, in
a way that outrages—that touch a sense of public outrage that all
of us can feel.

Mr, McINTosH. Do you have a sense that they represent the
norm?

Mr. Dear. No, I do not. I absolutely don’t.

Mr. McINTOsSH. Wouldn’t it make sense to target our efforts to-
ward those companies rather than have a broad-based approach?

Mr. Dear. You have to have a standard that allows you to act
when you find those circumstances. If there is no standard, and
you come and you say, “Well, we don’t like it,” well, for a govern-
mental agency, there has to be some basis on which an action—you
say, “This is intolerable. This is unacceptable. It’s illegal, and there
is a consequence from it.”

1 Mr. MCINTOSH. And there clearly is a standard that exists in the
aw.

Mr. Dear. That's why we have standards.

Mr. MCINTOSH. That’s right. But my point is, to say that there
are employers who treat their workers like debris and therefore we
should have an ergonomics regulation is a fallacious argument, be-
cause there are plenty of standards in the law now that prevent
those situations from happening. Perhaps, if we targeted our re-
sources toward making sure they didn’t happen after the 13th am-
putation but after the first amputation, then we would actually
succeed in providing a safer workplace.

Mr. Dear. Well, let me be as clear as I possibly can be, a number
of employers in this country do an absolutely outstanding job on
safety and health. They run some of the finest facilities in the
world, in terms of safety and health.

There are a huge proportion of employers who try to do right by
their workers in terms of safety and health because they know it’s
a good way to operate, and they would do that whether or not there
was a specific legal obligation or not. But knowing there is a legal
obligation, it spurs them to take that responsibility seriously.

ere is a tiny minority of employers out there who, indeed,
treat their workers as expendable and sweep away injured workers
like they are debris from the production process.

Mr. SHADEGG. Reclaiming my time, don’t you believe, Mr. Dear,
that, in a time of extremely short Government resources, the neg-
ligence law of America would allow us to protect that tiny minority,
if there is only a tiny minority of companies that are engaged in
that conduct?

Mr. Dear. No, because workers’ compensation provides an exclu-
sive remedy and specifically bars suits for negligence.

Mr. SHADEGG. Well, the workers’ compensation structure, to the
extent that we have—why doesn’t that handle the situation?

Mr. Deak. It’s a huge—


136

Las Onnieas

KELLER AND HECKMAN

1001 G Stress KW Fe
‘Suite 900 Wear a
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TM e855 KELMANTM
Facainite (202) 434-4040

ine

Testimony of David G. Sarvadi

Before the United States
House of Representatives

Committee on Government Reform and Oversight

Subcommittee on
National Economic Growth, Natural
Resources, and Regulatory Affairs
July 12, 1995


7

But, despite the high incidence rate and the enormous costs to the industry in
workers compensation and reduced productivity, it was not until OSHA got involved that the
meatpacking industry began to prevent these cumulative trauma disorders. Responding to
dramatic testimony from packinghouse workers at a Congressional hearing in 1987 about unsafe
conditions in a packinghouse owned by IBP, one of the largest meatpackers in the country,
OSHA initiated a major investigation into safety conditions at the plant. The result in 1988, was
the first million dollar fine for failing to reduce cumulative trauma disorders.

Even more noteworthy than the fine, was IBP’s response. They settled the case
with OSHA, dropping their challenge, and then began a multi-year effort to reduce these
disorders in the approximately 20 plants that they owned. And they did not take short cuts or
waste time blaming workers for these disorders. At their flagship plant in Dakota City, they
along with the union, formed working committees and hired experts to begin the process of
tedesigning hundreds of jobs to reduce these serious job injuries.

The solution lay in applying the science of ergonomics, which meant redesigning
those aspects of a specific job task that contribute to these disorders -- such as working with
your hand above your head, or working with your wrist in a bent position while doing forceful
job tasks, The results were dramatic. The first year after job changes were made, ctd cases
‘were reduced by half at IBP, and the number of related surgeries dropped by 40 percent. IBP's
workers compensation costs also dropped dramatically -- over 50% between 1988 and 1993.

Examples of ergonomic job changes that were made in the plant were: Vacuum
hoists ~ installed in areas where workers had developed serious back injuries from manually
lifting thousands of pounds of boxed meat every day; Hydraulic adjustable stands were built to
prevent workers from having to physically move cutting saws up and down while making cuts
in sides of beef. Now the stands move up and down, allowing the workers to saw rather than
lift; Overhead conveyor belts that forced workers to throw slabs of meat above their heads over
3,000 times a day were lowered. Workers now push the finished product through a hole onto
a conveyor belt running under the worktable, The result: disabling cumulative trauma disorders
of the shoulder and back were reduced dramatically.

IBP’s successful experience with reducing cumulative trauma disorders, however,
did not propel the rest of the industry to move forward. It took another 20 OSHA inspections,
made over the past 7 years, for a significant portion of the meat and poultry industry to begin
true efforts to reduce these disorders, And the results were impressive.

At Cargill, a major poultry company cited by OSHA, their efforts to reduce these
isorders has, and I quote from Broiler Industry Magazine “yielded very good results — the
plant’s comprehensive health care costs have decreased 280% since 1989."


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112

As I have indicated today, we have changed the performance
measurement from how many inspections and how many violations
to, What impact is the organization having on reducing safety and

ealth.

Now, with respect to what the private sector is doing, how do
they respond, I’ve had personal experience with companies that
were insured with the State of Washington, where we were able to
bring to the attention of senior management the cost of injury and
illness. Now, they were paying their workers’ compensation pre-
miums, but in many cases they were being treated as a fixed cost,
not as a variable cost. It was just “something we have to do.”

So we would try to communicate to the senior management, not
to the safety and health person, but to the owner, to the CEO, and
say, “Here’s an evaluation of your cost, your direct cost of injury,”
and, as you indicated from your story, the fact that if one claim is
filed, the experience modification factor increases, it has years of
additional expense.

When that material is presented, you often see those executives
make the one essential, crucial decision, which is, they are goin,
to commit their time, as executives, to the issue of safety an
health in their company. And when that happens, you have an in-
ternal system.

Mr. SHADEGG. I think you indicated earlier that, with regard to
the successes you’ve had with ergonomics, it has been because they
have discovered there was an economic benefit to doing that, or at
least those have been the biggest successes. The CFO that you
mentioned earlier, who said, “Gee, this is good for our bottom line.”

Mr. Dear. Yes. But he didn’t do anything until another part of
his company signed an order with OSHA agreeing to implement an
ergonomics program, because those costs had never become that
apparent, and the opportunities for savings hadn’t been quantified
in a way that allowed him to exercise that economic——

Mr. SHADEGG. Do you find your job difficult?

Mr. DEak. It’s a great challenge.

Mr. SHADEGG. Somehow I see you as attempting to second-guess
every single businessman in America. If I had that job, I would
find that immensely difficult.

You said a few minutes ago that, for example, in figuring out
how to apply these, you had to look at the economics. I can’t imag-
ine how you can look at the economics of my brother’s construction
company in Tucson, AZ, and understand how best to make those
decisions for him.

And yet, as I hear you, and as I look at the mission that maybe
the Congress has given you, I think we're asking you to second-
guess every economic decision in the American economy, and I,
quite frankly, am baffled as to how you could do it without being
severely criticized. And I’m, quite frankly, baffled as to how you do
do it without causing any more chaos to the economy than you al-
ready cause.

For example, it seems to me—I have severe problems with mo-
rale in employment. Lots of people get depressed, and I wonder if
OSHA is looking at—you know, the next step is perhaps we ought
to be looking at mental counseling, because we are dealing with oc-


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28

petitioned the Secretary of Labor for an emergency temporary
standard. The Secretary replied in 1992 that the issue did not

t the test for an emergency temporary standard, but that the

agency had concluded that there was sufficient evidence available
to support the need for developing a standard. Secretary of
Labor Lynn Martin stated in April 1992 that: ‘OSHA agrees that
available information ... supports initiation of section 6(b)
rulemaking to address ergonomic hazards.... OSHA agrees that
ergonomic hazards are well recognized occupational hazards.”

As a result, OSHA published an advance notice of proposed
rulemaking (ANPR) in August 1992, during the Bush Administration.
In support of this action, my predecessor, Acting Assistant

: “The continuing rise in the

Secretary Dorothy Strunk, sai
incidence of cumulative trauma illnesses gives credibility to our
judgment that emphasizing these problems in our enforcement and

standard setting efforts is worthwhile and necessary." The ANPR
described some of the information available regarding the extent

of the problem, and asked a series of questions to elicit

information from the public about the components of existing
programs and what people thought should be included in a proposed
standard. OSHA received almost 300 comments in response to the
advance notice. These comments included significant information
about existing programs, as well as many suggestions for the
contents of a proposed standard. The comments are part of the

public record of this rulemaking.

14


94

The ergonomics-related meetings took place early in 1994, and in
March and April of 1995. The date and location of each meeting,
and the list of participants, are included in the attached
information. We believe all of the parties invited accepted the
invitation to the meetings. The stakeholder meetings were
convened to obtain factual input from a wide range of individuals
and organizations prior to publishing a proposal, and were not
intended to be meetings where a consensus would be sought or
reached on any issue.

Your questions imply a somewhat more formal process than was
actually used for stakeholder meetings. Representatives from a
broad range of industries that might be affected by, and were
interested in, a proposed rule participated in the meetings.

In addition, several of the 1994 meetings were scheduled to take
place in locations outside of Washington. In each case, a site
visit was arranged for OSHA officials to tour a facility with an
ergonomics program in the location. I participated in each of
these site visits with various members of the Ergonomics Team.
Following the plant tour, we participated in a town meeting of
individuals from companies and unions that was arranged by
someone from the local area. The host for each of these meetings
decided who to invite. These discussions gave us the
opportunity to speak to people “outside the Beltway”, rather than
just consulting with trade associations and national union
representatives.

In 1995, we scheduled meetings with the same people who attended
the 1994 meetings. As noted in the letter we sent to the
invitees, the purpose of the meetings was to “gather information
and individual feedback.” OSHA clearly noted that these
information sessions were not a substitute for the public comment
and public hearing process that would take place once the
proposed rule was published. We also added some additional
attendees and subject areas to reflect significant contacts we
had during the intervening year. There was no “rejection”
process per se. We did not have a system where people requested
an invitation and we decided whether or not to allow them to
attend. The selection simply focused on those parties known to
be interested which represented various significant concerns in
the rulemaking process. We also wanted to ensure that the
meetings were of a manageable size to allow active participation
by all of the attendees, and interaction between the OSHA
representatives and the other participants. At least two members
of OSHA’s Ergonomics Team attended each town meeting and each
stakeholder meeting.


9

Mr. McInTosH. Let me now turn to my colleagues.

Mr. Peterson, do you have an opening statement?

Mr. PETERSON. Not much of one, Mr. Chairman. I apologize for
being late. I didn’t hear all of your statement.

Mr. McINTosH. No problem. It was a ringing one.

Mr. PETERSON. I guess I’m here today to hear more about this
whole situation. It’s a puzzle to me, I guess, how this has been
hanging around as long as it has, and it has apparently been put
forward by a number of different administrations. From what I
know about what they are up to here, it doesn’t make a whole lot
of sense to me, but. maybe there’s something I don’t understand.

I have to say that I am skeptical that any bureaucrat can sit
around and try to figure out this sort of thing. It just seems to be
kind of, you know, an unrealistic situation. So all I’m going to say
is that I'm here to learn more about this and, I guess, am willing
to be convinced that this makes some sense, although I’m pretty
skeptical about the whole situation.

I appreciate your calling the hearing and look forward to hearing
the testimony of the witnesses.

Mr. McInTosH, Thank you very much, Mr. Peterson.

Mr, Gutknecht or Mr. Shadegg, do you have an opening state-
ment?

Mr. SHADEGG. I have no opening statement.

Mr. McINTOSH. Ms. Meek, do you have an opening statement?

Ms. MEEK. No. Thank you.

Mr. MCINTOSH. Thank you very much.

Let’s proceed with our first panel. If Mr. Dear could come for-
ward and Mr. Woodward.

Mr. McINTOSH. Chairman Clinger’s policy is to ask that wit-
nesses before our subcommittees be sworn in. If the witnesses
would please rise and raise their right hands.

{Witnesses sworn.]

Mr. MCcINTosH. Let the record show the witnesses answered in
the affirmative.

Welcome, Mr. Dear, we appreciate your coming today. If I could
ask you to summarize your prepared statement and the whole
statement would be put into the record for our consideration.
Please proceed.

STATEMENTS OF HON. JOSEPH A. DEAR, ASSISTANT SEC-
RETARY OF LABOR FOR OCCUPATIONAL SAFETY AND
HEALTH, U.S. DEPARTMENT OF LABOR; ACCOMPANIED BY
JOSEPH M. WOODWARD, ASSOCIATE SOLICITOR, OCCUPA-
TIONAL SAFETY AND HEALTH DIVISION, U.S. DEPARTMENT
OF LABOR

Mr. Dear. Thank you, Mr. Chairman and members of the com-
mittee. I would be pleased to summarize and ask that my state-
ment be put in the record, as well as supplemental information
which we have also brought along.

I am delighted to discuss with the committee OSHA’s attempts
to address the problem of work-related musculoskeletal disorders
and the application of ergonomics to their solution. Before I ad-
dress this really important topic, I would like to make a few gen-


II. LETTERS AND PETITIONS TO OSHA
REQUESTING AN ERGONOMICS STANDARD


BaA- 753

Dear Mr. Secretary:

I am Flor Reinoso. I worked many years as sewing machine operator.
My problem is both hands are very sick by carpal tunnel syndrom
My both hands were operat and I can not work. Everything falls
from my hands, Pain prevents me to hold anything. Pain from my
hands is accompanied by pains from my back.

All this has afected life at home because of I cannot pay attention
to my children and my husband. Instead they are attending me. The
two operations have helped me very little . I am feeling almost the
same as before, everything is falling from my hands.

We want your support to prevent these illnesses. We need new and
better standards from OSHA to improve work places to all work

We will hope you will accept and act on our request.
Thank you for your attention.
sincerely yours,
Flor Reinoso

103-18 124 St.
Richmond Hill, N.¥. 11419

Soe


5

here on the committee know, Congress will soon fall under the cov-
erage of the Occupational Safety and Health Act and of this par-
ticular standard, if any is adopted.

I want to refer briefly to a section of the draft proposal. To me,
it is mindboggling to think about formally reviewing every one of
the 96 million jobs for the ergonomic effects, but that is what the
original rulemaking would have required to signal risk factors
which were inherent in every job, as we can see on page 4 of the
draft proposal.

It is also frightening to think about how many of these jobs may
be eliminated before they are reviewed. For example, in OSHA’s
case against Pepperidge Farm, the company was in violation of
ergonomics standards for the method in which its workers assem-
bled Milano cookies. We brought the cookies here today so that ev-
eryone can see exactly what was issued.

Apparently, there were two processes at work here: one was “cap-
ping, putting the chocolate filling in the cookie; and the other was
“cupping,” or placing the two cookies in a paper cup for packaging
and distribution. If such jobs were in violation of the ergonomics
standards, then surely what the economy and the companies will
do is replace them with robotics and other machines.

Other examples of ergonomics violations cited in the proposal in-
clude actions most workers perform daily. Workers would be pro-
hibited from repeatedly pinching small paper clips, because it could
possibly exert a 2-pound pressure in pinching that item, or twisting
their necks in a way that would cradle a telephone receiver.

A questionnaire in the draft proposal asks employers of computer
users if their employees are allowed to determine their own pace
and discourages employers from using any incentives to work fast-
er. In other words, employers would not be allowed to encourage
productivity. If the ergonomics rulemaking is truly dead, we have
saved more than just the enormous costs involved; we have poten-
tially saved millions of. jobs.

Because the United States continues moving forward as a serv-
ice-based economy with greater competition from world markets,
and because every job requires us, at some point, to sit, stand,
walk, talk, move our hands, and increasingly use a computer, we
will necessarily be engaged in repetitive activity. We need to learn
more about the long-term impact of such activity on our health and
safety before we attempt such a massive, sometimes silly regu-
latory effort.

There is a new thinking in Congress that is grounded on the
principle that regulations should use common sense; they should be
based on thorough risk assessments and good science; they should
not cost American workers their jobs; and they should increase in-
dividual freedom in the workplace.

I want to thank the witnesses for comin teday.

(The prepared statement of Hon. David M. McIntosh follows:]


111

Mr. Dear. I was deputy head of the agency from 1985 to 1987,
then became director. And prior to that I was research director for
the Washington State AFL-CIO.

So the experience is politics, public affairs, and public adminis-
tration, including, when I was with the State, the administration
of the Washington State Occupational Safety and Health Plan.
Washington is one of the States which elects to operate its own
safety and health Programs.

Mr. SHADEGG. And before your position with the AFL-CIO, what
did you do before that?

ir. DEAR. I ran a nonprofit organization that was concerned
with State tax policy, called “People for Fair Taxes.”

Mr. SHADEGG. Well, that’s a good cause. And before that?

Mr. DEAR. College student.

Mr. SHapeGG. OK. You said you were involved in the field of
workers’ comp. I have had an experience much like the chairman’s
experience, and that is, I have constituents come to me—and actu-
ally like the ranking member’s experience—I’ve had many, many,
many, many, many people in Arizona come to me, one after an-
other, with a litany of stories about OSHA and concerns about

Indeed, your early comments, I think with a rather broad brush,
suggested that many of those anecdotal stories we hear simply
aren’t true. And if that’s so, then there are a lot of people coming
to me with untrue stories. But be that as it may, I guess my ques-
tion of you is an incentive one.

I have found, in my life’s experience, that people respond to in-
centives better than they respond to punishment. My son, I seem
to do better when I offer him, say, an allowance, or something for
doing well, rather than when I threaten him with punishment. He
tends to ignore me when I threaten him with punishment.

I had someone come to me the other day and say, “You know,
I am more concerned about a single complaint filed with the indus-
trial commission in my State, where my industrial rates could
up, than with an army of kind of second-guessing bureaucrats talk-
ing about safety issues.” What is your reaction to that? And if we
are to—well, what is your response to that, the structure of regula-
tions versus incentives, and economic incentives, in particular?

Mr. Dear. The question is, how to produce the result which was
desired when the Occupational Safety and Health Act was adopted
to accomplish the mission: to assure, so far as possible, every work-
ing man and woman’s safe and healthful conditions of employment.

0 questions of enforcement versus consultation, standards ver-
sus guidance, are never either/or questions; they are questions of
degree and of smart strategy; questions of measuring the effective-
ness of organizing the work, in terms of results, and then being
prepared to make adjustments based on what those results are.

I came to Washington, DC, and I say, “OK. Let me see the man-
agement reports.” And things are dusted off from 1983, and I see
a bunch of activity measures. I ask to see what the performance
evaluations were. I mean, these are the incentives in OSHA. I
mean, people do—you're absolutely Tight—-people behave the way
the incentives are structured. That’s what logical people do.


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188

Mr. Treaster, I understand that you mentioned one of my favor-
ite companies, Xerox, which is my district, up in Rochester, NY, as
an example of what they have done with quality circles and work-
ing with ergonomics. We are hearing a lot from some of my col-
leagues now that that team concept is not allowed under the
NLRB, and looking for a law change.

Do you have any specific cases that you have encountered where
you were able to convince management of the need for these circles
and your experience of how well they have worked?

Mr. TREASTER. Yes, as a matter of fact, I took a trip to Xerox
when I first started getting involved with the union. It was like the
high point of union activity and company and employees working
together. And me being the person I am—I’m pretty nosy—I talke
to a lot of employees off the guided tour they give you. I tried to
pull people aside, and they said they actually had a right to pull
engineers in, redesign their own production lines, buy ergonomic
equipment that suited them, adjust and raise tables.

I went back to my company and said—you know, we have dif-
ferent platforms—I said, “Let’s let these people do that with their
platforms. Let’s bring them in and let them decide how we're going
to run it, how the machines are going to be set up,” and we’ve done
that pretty well. With every new platform, before the tools are even
made anymore, we take people that are going to run that platform
and help design it ergonomically, so the machine fits the person,
and the person doesn’t fit the machine.

Ms. SLAUGHTER. And you've found that that means the person
works better, is more productive, happier. It’s obvious to me that,
if they have a say in their work—and I heard the same thing from
Bausch and Lomb, which is also in my district, that they realized
people who had been making sunglasses for 25 years knew some-
thing about it, and that they have also engaged in the team con-
cept,

But, in general, what does this do for the work force? Would you
say it makes it more stable, or does it make any difference?

ir. TREASTER. Well, first off, if you’re healthy, you're usually
happy. And keeping people from being hurt is the first step in
being happy and actually having a say in what happens to them.
Anytime a person has a say in what they do—and just like I do
today, it’s a small say, but it’s a say—you feel like, you know, at
least you’re getting your fair chance. I think that’s just what most
of the average workers are asking for, and it has helped my plant.

Ms. SLAUGHTER. Thank you very much.

Mr. McINTOsH. Thank you very much, Ms. Slaughter. I don’t
know if you meant to imply this or not, but I hope you will join
us on the team act, if we make that legal change.

Ms. SLAUGHTER. Well, actually, Mr. McIntosh, it’s my under-
standing there is nothing whatever that prohibits companies from
having circles. And Bausch and Lomb, as I mentioned, is nonunion,
and they have done it for years. So we’ve got plenty of legislation
we've got to do here. I don’t see any point in doing something that’s
useless—although we do that.

Mr. McINTOSH. Try not to.

Ms. SLAUGHTER. I just don’t like it.


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92

4) Does OSHA have any current plans to issue any ergonomics
rule, standard or guidance?

OSHA is continuing to work on a variety of measures to address
the issue of preventing work-related musculoskeletal disorders.
Among these measures is a potential proposed regulation as
outlined in the administration's semi-annual regulatory agenda
without a specific projected publication date.

5) If OSHA has no current plans to issue any ergonomics rule,
standard or guidelines, will OSHA continue to enforce
ergonomics principles or any informal ergonomics standard
under the general duty clause?

The agency is not enforcing any "informal ergonomics standard.”
As with other recognized hazards, OSHA will continue to use the
general duty clause to address ergonomically-related hazards in
the workplace, as it has done since the late 1970's.

6) Is OSHA continuing to gather information on ergonomics?

7) If so, is OSHA gathering this information in preparation
for, or anticipation of, the issuance of an ergonomics rule,
standard or guidelines in the future?

8) If OSHA is not gathering this information in preparation
for, or in anticipation of, the issuance of an ergonomics
rule, standard or guidelines, for what purpose is OSHA
gathering this information?

OSHA has gathered a significant body of information regarding
ergonomically-related hazards. We continue to review this
information, and supplement it with new data as it becomes -
available. The Agency intends to remain as current as possible
with the state of scientific knowledge in this area. OSHA plans
to address ergonomics through a comprehensive strategy that
includes both regulatory and non-regulatory activities. All of
the information we collect and analyze will be used to ensure
that our strategy is based on the best available evidence.

9) Who in OSHA is currently assigned responsibility for working
on ergonomics principles, guidelines or conditions? Do you
plan to keep that team intact? What would the cost to OSHA
be to keep an ergonomics team intact?

There are many people in OSHA who work on ergonomics principles
or conditions in some respect. All of our compliance personnel
are responsible for ensuring that employers have safe and
healthful workplaces, and this would include consideration of
ergonomics principles and ergonomic conditions in the workplace.
There is also an Office of Ergonomic Support in the Directorate
of Technical Support. The ergonomists in this office provide
support to both our field personnel and the public with regard to
ergonomics issues. In addition, there is an Ergonomics Team,

2


180

‘The Clinton Administration, for their part, attempted to continue working on the
rulemaking initiated by the previous Republican Administration to prevent cumulative trauma
disorders. This Administration continued the extensive outreach effort begun under the
Republican Administration to continue to get input from interested industry parties on this
rulemaking. But truthfully, little progress has been made in the standard -- contrary to what
industry has stated.

Using the comments OSHA received from the Advanced Notice of Proposed
Rulemaking under the Bush Administration and information provided by industry during
subsequent meetings, the staff at OSHA came up with 26 page double, spaced draft, proposed
standard -- along with a draft copy of the massive supporting documentation required of the
agency to support a proposal in the Federal Register. Prior to sending this proposal to the
Assistant Secretary's desk for review, the staff opted to gain even more input from industry,
insurance groups and other worker health and safety groups -- and held a series of meetings
across the country. And today as we speak, that is still all that OSHA has -- a draft of a
proposal.

For those of you unfamiliar with OSHA's regulatory process, this draft proposai
first must be approved by the Secretary of Labor and the Office of Management and Budget.
It then must be published as a "proposal’ in the Federal Register where OSHA must receive
comments and conduct public hearings on this proposal. At OSHA , this usually takes 5 years.
After this lengthy public hearing process, OSHA then writes and publishes a final rule.

This is clearly not the case of overzealous bureaucrats trying to enrich themselves,
as other witnesses at this table have remarked in recent speeches. This is an Administration
slowly, and carefully moving forward on a rule making process started and nurtured by
Republicans in response to industry requests. Further, the bureaucrats working on this bi-
partisan initiative have made it their priority 10 continue to solicit input from affected parties ~
as opposed to shutting out those this regulation could effect.

‘The problem however, is that in the absence of a standard requiring companies
to reduce cumulative trauma disorders, these disorders will continue. OSHA's activities on
ergonomics is not about abstract science or statistics, it is about real people. Real people like
Gloria Williams from Mississippi, Evelyn Miller from Maryland, or William Buck from upstate
New York. Each of these are workers who held up their end of the American Dream -- they
went to work each day and supported their families. And then, due to the rigorous design of
their jobs, there hands and arms stopped working.

Gloria Williams was 28, the mother of three children, who worked to support
herself and her family in a catfish plant in Mississippi. She worked on the fillet line making
three cuts every ten seconds, for 8 hours a day 5 days a week. Then her right hand started
hurting bad. The pain got worse and worse. Soon she couldn't hold things at home ~ like
combing her daughter's hair or even her kids. Then one day she couldn’t grip her knife. The
company refused to send her to a doctor and told her to go home. One year after her testimony,
this plant was cited by OSHA for failing to reduce cumulative trauma disorders, and began an
effective ergonomics program.


183

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18

"quotas" for citations and penalties. While OSHA has never used
quotas, it has in the past used citations and penalties as
performance measures. But not anymore. This year, the new OSHA
ended this practice.

A major success story for OSHA in its attempt to work more

closely with employers and employees is the ‘Maine 200" concept.
In Maine, OSHA identified the 200 employers with the highest
number of injuries and illnesses, and gave them the choice of
participating in a new program or sticking with the traditional
enforcement approach. Nearly all chose to work cooperatively
with OSHA to establish safety and health programs. Doing the job
themselves, these employers identified about fourteen times as
many hazards as OSHA's small staff of inspectors could have
found.

I would be pleased to elaborate on these initiatives during

the question and ansver period.

OSHA’ s Exgonomics Initiatives

We also welcome the opportunity to discuss the subject of
today's hearing -- ergonomics -- because it too has generated
nyths and fables that have been widely disseminated. The first
myth is that OSHA is on the verge of publishing a final rule; in
fact, OSHA is working on a proposal to permit a full and open
public discussion. While some OSHA rulemakings may generate
broadly divergent views among interested parties, the best way to
ensure full and fair debate on such i

is by the publishing


AT

Mr. McINTOSH. The subcommittee hearing is reconvened. Thank
you for your patience again.

Mr. Gutknecht, do you want to proceed with questions?

Mr. GUTKNECHT. Thank you, Mr. Chairman.

I first of all want to echo the thoughts of my colleague from Min-
nesota, Mr. Peterson. How you see the world depends largely on
where you sit. Benjamin Franklin said, “I know no lamp by which
to see the future than that of the past.” The experience we've had
in the past, and the experience we've had from many of our small
business ple in our districts has been that they don’t have a
particularly high regard for OSHA.

Now, I respect the job that you have, and it’s a difficult job. I
think all of us do want plant safety and worker safety and all those
things, but the problem that we wrestle with on this committee so
often is that—at least the perception that some of us have—is that
there have been proposed by OSHA and other regulatory bodies, in
effect, $50 solutions to $5 problems.

Let me, first of all, ask you, under what authority are you pursu-
ing the ergonomics ruling, regulatory rule?

ir. DEAR. The Occupational Safety and Health Act says the mis-
sion of OSHA is to assure, so far as possible, every working man
and woman in the Nation safe and healthful working conditions.
Section 6(b)(5) of the act prescribes the requirements for OSHA to
meet in addressing health risks or risks due to toxic substances. It
is on that basis that we are proceeding to address the problem of
work-related musculoskeletal disorders.

Mr. GUTKNECHT. So this is principally a health issue, then?

Mr. Dear. The prescriptions of section 6(bX5) are somewhat
More onerous than those for safety standards, in terms of the
amount of scientific and economic evidence we have to present. So
it is a higher standard, in terms of what we have to meet to estab-
lish a standard.

Mr. GUTKNECHT. One of the concerns that I have—and you ac-
knowledged a couple of points that I feel fairly strongly about—one
was that this has been going on for a long time. As a matter of fact,
I remember, I think it was 20 years ago, back when I was sellin;
school supplies and equipment, we went to a plant in the nor
part of Indiana—I think it’s just outside of the chairman’s dis-
trict—Peabody Furniture had just come out with an ergonomic
school chair.

It’s interesting. We talk about OSHA. We subject an awful lot of
school kids to these very, very hard plastic chairs for 6 hours a day,
that are very rigid. Peabody Furniture was the first company to
come out with one that had a lower lumbar back support. I remem-
ber talking about ergonomics 20 years ago.

I think that industry has been working on this problem on their
own. In fact, you said something else, and I quote directly, you
said, if one of your employees complains of a backache, you're going
to do something about it anyway. I think that’s where we sort of
are at this philosophical divide, and that is, how necessary really
is it for the Federal Government to enter this area?

I have visited—and I have both some poultry processing plants,
and I have some other meat Processing plants in my district out
in Minnesota—and I can tell you that I toured two of the plants,


51

country who have had surgery and have permanent disabilities
that prevent them from that.

So I’m all for considering costs and benefits and being very hard-
headed about that, but I don’t want to be softheaded about the
human element of this. The Pepperidge Farm workers that we
have talked about, many of those women had surgery. Now, it may
sound like no big deal to put a cookie together and stick it in a cup,
but do it for 8 hours. Even the company’s own doctors in that case
said that the conditions that these women suffered were related to
their work.

So we have to remember that we need good science, we need
good economics, but there is no way, in a market system, we can
put a dollar value on somebody who loses their occupation or has
their daily life constricted because of a permanent physical impair-
ment.

Mr. GUTKNECHT. Mr. Chairman, can I foliowup on that?

Even the example you use, some people are more likely to get
back injuries. For example, our family dentist had to have carpal
tunnel surgery; not every dentist has to. Perhaps it was what he
was doing, and maybe there were ways he could change what he
was doing, but, on the other hand, maybe it was just because, I
mean, he had a genetic weakness of that type. How do you account
for that?

Mr. Deak, That’s not a unique problem with musculoskeletal dis-
orders, We know asbestos exposure has a much higher probability
of producing cancer if the worker also smokes. We know that hear-
ing loss is affected by both noise on the job as well as off the job
activities. That has not prevented OSHA from establishing stand-
ards in both those instances. So it’s not a unique problem.

The draft proposal that we circulated in March made the deter-
mination of the work-relatedness in the judgment of the employer,
not of the subjective report of a worker or somebody else. The em-
ployer had to decide there was a connection between that. So we
tried to address that practically.

Look, your point is well taken in that there are other things that
happen besides work activities that may produce a back sprain or
strain and that we need to be aware of that. You can’t ignore hun-
dreds of thousands of employer-reported injuries and up to 2.7 mil-
lion workers’ compensation claims and say that none of this prob-
lem is work-related.

Mr. GUTKNECHT. Thank you, Mr. Chairman.

Mr. McINTosH. Thank you, Mr. Gutknecht.

Let me acknowledge that Mr. Owens is here with us, and he is
the ranking member of the Subcommittee on Education and Eco-
nomic Opportunities that will be dealing with these issues.

Welcome, Mr. Owens. I appreciate your participating in this
hearing. Why don’t we start, if you have some questions, and we
can recess if you don’t get to all of them.

Mr. OWENS. I will make it brief, Mr. Chairman, so we will finish.
I want to congratulate you on holding these hearings on this very
complex subject and thank you for allowing me to participate.

Mr. McINTosH. Let me just double check. I assume there is no
objection, unanimous consent, that Mr. Owens can participate. I
see none.


BATH

Dear Mr. Secretary

This is Olga Bermudez. I have tendonitis in my right hand and
shoulder.

I can't work, lay down on that side, dress myself, grip anything.
This problem causes me too much pain. I can't sleep well. This pain
awakes me at night.

I need help from my children to do housework. I can't help with
anything, a jar, open a can, comb my hair, raise my arm, write a
letter. The pain that I feel is terrible in spite of treatments
doctors had given me.

Help us to prevent these illnesses through standards that are more
acceptable for work and for equipment.

At this moment, I have difficulty writing this letter. I have
worked for 15 years doing the same work, and now I am disabled.

We hope to get your support and cooperation. We need so much.
Sir, I invite you to visit an industrial garment factory to verity
by yourself bad conditions of the workplace.

Sincerely yours,

Olga Bermudez
104-18 42nd Ave. Apt A-9
Corona, NY 11368



142

KELLER AND HECKMAN

July 12, 1995
Page 7

Recently, District Court Judge Marjorie O. Rendell, in a case in Pennsylvania, cut
through the pseudo-scientific fog. She refused to admit the testimony of an "ergonomist”
‘as an expert witness under the new Daubert” criteria for admission of scientific
evidence!

The lack of a rigorous scientific underpinning for ergonomics in the current
circumstance must be laid, in part, at the doorsteps of OSHA and the National Institute
for Occupational Safety and Health (NIOSH). This lack of scientific support was
underscored by the results of a study by members of the American National Standards
Institute (ANSI) Committee on the Control of Cumulative Trauma Disorders (CTD).
Notable members of this committee included Dr. Barbara Silverstein, formerly the
special assistant for ergonomics under OSHA administrator, Joe Dear; Dr. Thomas
Armstrong, one of the leading authorities on the subject of ergonomics, and many others,
including academics, consultants, government scientists, and industry practitioners. Their
conclusion -- which remains unchallenged today -- was that there were insufficient,
scientifically reliable data to permit the committee to draw conclusions about risk factors,
causation, and successful interventions.

The ANSI Committee, in fact, discussed the “risk factors" that OSHA included in
its draft proposal released in March: repetition, duration and recovery time, force, and
posture. None of the subcommittees assigned to review the literature in each of these
areas could discern any quantitative relationships between the risk factors and the RSIs.

Worse, most of the scientific reports they reviewed failed to contain enough
information to allow the reports to be used in the evaluation at all. The percentage of
reports in the scientific literature which satisfied the Committee's reliability criteria
ranged from a low of 0.6% to a high of 24%, while the number of studies considered
ranged for each risk factor from approximately 150 to over 2000. Perhaps this is what is
‘meant by “junk science.”

More important were the Committee’s conclusions. Basically, the experts in this
field agreed that insufficient scientific information was available to determine when a

¥ In the Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
125 L. Ed. 2d 469, 113 S. Ct, 2786 (1993), the Court interpreted the Federal Rule of
Evidence 702 on the admissibility of expert scientific testimony.

v Juliana R. Sparks v. Consolidated Rail Corp., (E.D. Pa), 1995 U.S. Dist. LEXIS
6234, May 8, 1995. Questioning the relevance and reliability of the testimony, she said,
“the opinions offered as to ways to increase job safety are based on logical deduction
rather than any type of scientific knowledge. . . . [T]he proffered opinions are not the
product of any specialized knowledge but are more akin to common sense reasoning.”


135

valid. And it ranged from less than 1.5 percent of the total reports
to 25 percent.

So we need to take a close look at that, and I commend OSHA
and NIOSH for taking a closer look at the scientific issues. I would
like to see more information released, particularly the bibliography
that Mr. Dear talked about or offered in his written testimony
today. We would certainly like to take a look at that information
and take a closer look at what is contained in there.

I want to say one more thing about recordkeeping that is impor-
tant to keep in mind here, also, for the future, and that is that the
current system, while it may be the only system we have, needs to
be carefully examined, because it may or may not, depending on
your point of view, exaggerate the true picture. But there is a proc-
ess right now at OSHA involving recordkeeping that could exagger-
ate the situation even more, and that is the proposal to add a col-
umn on musculoskeletal disorders to the OSHA reporting form that
is the basis for the BLS statistics.

Because of the changes that OSHA is proposing, there could be
an artifactual increase in the number of cases, in the number of
total cases, and the number of lost workdays, which would increase
the severity and make it appear that the situation was worse than
it is. That is also in a rulemaking, and we're also taking a close
look at it. But it could affect the ergonomics rulemaking in such
a way as to distort the true picture of the situation.

With that, I see my time is up, Mr. Chairman. I will be happy
to take any questions at the appropriate time. Thank you.

[The prepared statement of Mr. Sarvadi follows:]


13

note that, according to the latest Bureau of Labor Statistics figures,
these two industries have shown decreasing rates of repeated trau-
ma disorders caused, in large part, we believe, by the programs
these employers implemented as a result of OSHA’s enforcement
activities.

The issue of promulgating a standard to address work-related
musculoskeletal disorders has been under consideration for some
time, as well. While there have been voluntary activities to address
some of the problems, the ever-increasing number of reported cases
appears to indicate that employers need more than guidance to ad-
dress these concerns.

In 1991, the Secretary of Labor was petitioned for an emergency
temporary standard. The Department denied the request for an
emergency temporary standard, but Secretary Martin said at the
time, in April 1992, that “OSHA agrees that available information
supports initiation of section 6(b) Fulemaking to address ergonomic
hazards,” and, further, that “OSHA agrees that ergonomic hazards
are well-recognized occupational hazards.”

As a result, OSHA published an advance notice of proposed rule-
making in August 1992. My distinguished predecessor, Dorothy
Strunk, who is here this morning, said at the time, “The continuin
rise in the incidence of cumulative trauma disorders gives credibil-
ity to our judgment that emphasizing these problems in our en-
forcement and standard-setting efforts is worthwhile and nec-
essary.

One of the criticisms among the many that we have heard from
opponents is, there is not enough science to support the standard,
that the agency doesn’t have sufficient information available. These
arguments are not convincing, given the large amount of scientific
data available about the pro! lem and the solid evidence regarding
the solution.

Now, there is bound to be controversy in any significant regu-
latory rulemaking. One of the purposes of the public hearing proc-
ess is to bring all those views to bear as an agency makes a deci-
sion.

OSHA’s job is to protect employees to the extent feasible, based
on the best available evidence. In some cases, this involves a more
limited data base than we have for ergonomics and requires com-
plicated extrapolation from animal studies to the worker popu-
ation. That is not the issue we are addressing here.

Our evidence is based on the real experience of human beings in
the workplace, actual statistics reported by employers, by workers’
compensation insurers about injuries which occurred on the job.
This is unusual in health standard setting that we have this much
information about the direct experience of real people, real workers
on the job.

Now, turning to the next step, we are continuing to work on reg-
ulatory approaches to these problems as well as other approaches.
We are considering what type of proposal we should issue. In some
sense, in this hearing I find myself defending a proposal we haven’t
made. We are considering what proposal to make.

Making a proposal would allow this iterative process of readin,
the literature, talking with employers and workers and professional
experts, showing them drafts, getting comments, refining the drafts


137

KELLER AND HECKMAN
Testimony of David G. Sarvadi

Before the United States
House of Representatives

Committee on Government Reform and Oversight”

Subcommittee on
National Economic Growth, Natural
Resources, and Regulatory Affairs
July 12, 1995

My name is David Sarvadi. The message I want to leave with you is a simple
‘one: anecdotes like the ones we hear repeatedly about injured employees and "success
stories” for ergonomics and OSHA are interesting, but when it comes time to impose
Icgally-enforceable mandates, there is no substitute for honest, scientific analysis.
Unfortunately, in the current debate over the development of an OSHA standard
applying ergonomic principles to health and safety prevention, far too little of the
information discussed to date has been about what we know and do not know about the
human body, its capabilities, and the injuries we seek to prevent. What I hope to leave
you with is a better perspective on the context in which the debate is occurring,
particularly with respect to other health and safety issues.

1am an attorney, but I am also a Certified Industrial Hygienist and have been
practicing in the field of occupational safety and health for twenty-five years. I received
my introduction into the field of ergonomics in 1969 while studying for my masters
degree in hygiene at the University of Pittsburgh's Graduate School of Public Health.
have avidly followed the development of the Occupational Safety and Health
‘Administration (OSHA) and its regulatory apparatus since its genesis in 1970. For the
past nine years, I have practiced law, focusing on occupational safety and health issues,
the last five here in Washington with the law firm of Keller and Heckman. I have been
involved in the development of the ergonomics standard as counsel to the National
Coalition on Ergonomics. But I speak to you today, not as a representative of industry
or even of Keller and Heckman, but solely on my own behalf as an interested participant
in the prevention of injury, disease, and death in the workplace.

‘To Tell the Truth. The Whole Truth, and Nothing But the Truth

OSHA's story about ergonomics has the appeal of simplicity. But as we shall see,
it is a simplistic vision, one that Congress should be concerned about. OSHA's current
story, based on data from the Bureau of Labor Statistics (BLS), is that 60% of all
reported work-related illnesses are associated with repeated trauma, and the number of
cases has risen five-fold between 1985 and 1992. Such an epidemic, according to OSHA,
demands a response — a comprehensive approach to solving the problem. But as we all



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SAIYOLS SSAIINS NOLLIALOYd DINONODYA



(ON HUNDRED FOURTH CONORESS. Shite

Congress of the United States Bar.

House of Representatives ee.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT Sanne
2157 Ravounw House Orr BURN Sasa
Wasninaton, 6 20615-8143. Seon
SUBCOMMITTEE ON MUMAN RESOURCES ie
'AND INTERGOVERNMENTAL RELATIONS ae
Seether Shae Comes geen ee

Fae. 202 228-2382

STATEMENT FOR THE RECORD.

BY CONGRESSMAN CHRISTOPHER SHAYS
CHAIRMAN, SUBCOMMITTEE ON HUMAN RESOURCES
AND INTERGOVERNMENTAL RELATIONS
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

BEFORE THE SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS HEARING
JULY 12, 1995

‘Thank you Chairman Mcintosh for allowing me to submit this statement forthe record of
today's Subcommittee hearing on the Occupational Safety and Health Administration's (OSHA)
regulatory activities and processes regarding Ergonomics.

I chair a reform and oversight subcommittee with jurisdiction over those departments and
agencies of government providing human resource services. One of those agencies is the
Department of Labor, of which OSHA is a part.

Tam concerned that OSHA's proposed rule on ergonomics is too broad, 100 vague and
does not recognize that ergonomics as a science is still in its infancy. At this time, there is litle
scientific knowledge or consensus on what ergonomic problems are, how they are caused, oF how
they can be treated and prevented, Until this information is available, regulations regarding
ergonomics are premature.

For example, OSHA's proposed rule does not recognize that an employee's injury may
have been caused or exacerbated by non-work activities. Furthermore, no one is sure how much
of an ergonomic problem may be caused by other non-work related factors such as the worker's
physical fitness.


174

And I also want to let you know that in many of these jobs, espe-
cially in poultry, the answer to these problems is automation, and
the workers welcome it, and so do the companies. And we haven’t
lost jobs. What we have done is prevented injuries and illnesses.

I just want to let you know that the whole standard-setting proc-
ess on ergonomics started under the Republicans. It started with
an industry petition itself to OSHA for a standard. They asked
OSHA for a standard. Why? Because in the absence of a standard,
there were virtually no guidelines for the company to use to
achieve compliance, and they wanted a standard.

In 1992, Dottie Strunk, then the Acting Assistant Secretary for
OSHA, began the formal process of writing a standard. She is now
the leading spokeswoman against the process.

The need for a standard was also propelled forward in 1992,
when an administrative law judge hearing the only OSHA CTD
case that had gone to trial, overruled OSHA on these types of cita-
tions and said, “The Secretary of Labor must promulgate a stand-
ard to cover this very serious citation, and you cannot rely on the
use of the general duty clause.”

I just want to finish by saying, I was a stakeholder at two of the
meetings that OSHA had over the last year on this ergonomic pro-
posed rule, and I really applaud OSHA for doing this. Because,
under the Reagan and Bush years, we were never allowed to see
any drafts of anything until it showed up in the Federal Register.
So this is a very new and open administration, and I welcome that.

But in the two meetings that I was at, and there were represent-
atives of the auto, packinghouse, poultry, and meat industry, none
of the industries had any problem with OSHA's writing a proposal.

I think what is important to remember here is that these dis-
orders are real, that industry has and can prevent them, and that
they have only done so in the wake of OSHA's efforts. If you deny
the Government the ability to focus on these disorders through en-
forcement, guidelines, and regulations, you will assure that these
disorders will take an even bigger toll on both this Nation’s work-
ers and its industries.

Thank you.

[The prepared statement of Ms. Berkowitz follows:]


163

Company has now installed 22 spring-loaded platforms to reduce the amount of lifting.
The Company hired a nurse who headed the joint safety committee. She had some
background In ergonomics also, With this new structure in place, getting the Company
to move on safety or ergonomics Is a real possibility. She ha: In been promoted to
8 corporate position on ergonomics and risk-management to help all the plants solve
their problems.

The Committee usually works, though not always. But the company always
knows that if they dont listen, we will threaten to call OSHA, and then it gets fixed.

Id lcs, a j nt

In 1991, we also dropped the piecework system. Under the old system, the
scrap rate was very high, and materials were 75% of the Company's production costs.
We started a 10-month joint effort with the company to establish a "gain-sharing"
program, focusing on Quality, Cost-reduction and “Value-Added” (a performance
Standard). They called this "Working Smarter, Not Harder.”

This was very controversial at our contract negotiations -- with a 50/50 split
among the members. They were afraid that their eamings would drop because they
would be putting out the same production with less money. But we also knew we
couldn't keep beating up our bodies — we all needed to work smarter not harder. We
weren't as young as we used to be.

Thay didn't slow down the work — the production didn't drop much at all. The
earnings of the fast workers were frozen making the same money | made six
years ago. One-third of the workers gained, one-third stayed about the same, and
one-third lost in wages.

Overall, the effects of new work design and organization have been good.
We have started an employee Involvement program which demonstrates this. it uses
the workers’ knowledge of a production system set up by the company to improve the
system and make it run smarter. Our plants are very busy. In Lewistown, we've grown,
from 230 people in 1989 to 300 in 1994.

Overall, we're also more productive. The gainsharing program has paid out an
average bonus of around 8% of plant eamings since it started.

Quality has improved, too. Last year, we received a Gold Pentastar from
Chryster for high-quality products,

And overall labor-management relations are better. Grievances are way down.
We have a much smoother operation, with frequent regular consultation between labor
and management. But we can't forget how we got started. Without OSHA, the old way

4


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27

regard--red meatpacking and automobile manufacturing. It is

interesting to note that according to the latest BLS statistics,
‘the
trauma disorders--caused in large part, we believe, by the

two industries have shown decreasing rates of repeated

employers have implemented as a result of OSHA's

programs th
enforcement activities.

OSHA has also issued a number of written materials in
response to employers’ requests for information about ergonomics.
In 1990, the agency provided Ergonomics Program Management
Guidelines for Meatpacking Plants. While this publication
included some information that was specific to meatpacking
operations, it also provided general guidance for the elements of
a comprehensive ergonomic safety and health program and has been
widely used by employers in other industries. Also in 1990, the
agency began publishing “Ergo Facts,” which are short
descriptions of actual problems found in a workplace with
solutions that work. In 1991, the agency published two brochures
to describe ergonomics and to address work with video display
terminals. OSHA also funded seven ergonomic training grants in
1994,

The issue of promulgating a standard to address work-related
musculoskeletal disorders has been under consideration for some

years. While there have been voluntary activities to address

some of the problems, the ever-increasing number of reported
cases appears to indicate that employers need more guidance to

address these concerns. In 1991, a coalition of unions

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146

Mr. McInTosu. Thank you for that.

Dr. Sandler.

Dr. SANDLER. Good afternoon, Mr. Chairman.

I’m an occupational and environmental physician, and I appre-
ciate the opportunity to provide testimony today, as requested by
the committee to do so. I have spent most of my career in occupa-
tional and environmental medicine, starting with NIOSH, and I
have spent a considerable amount of time in the area of looking at
medical management of cumulative trauma disorders.

I have worked with numerous companies, many of which have
been cited by OSHA, and many companies that have gone forth
and undertaken ergonomics and medical management programs on
their own.

My remarks today will be mostly bearing on the problems in the
science and the medicine as to what we know and what we don’t
know. Clearly, there is a voluminous amount of literature out there
with all sorts of findings and pronouncements for findings that may
or may not be based on good science. The literature, as it stands
right now, really doesn’t provide clear guidance on what are the
cutoff levels, how much repetition, how much force, how much posi-
tion or posture you have to have in order to have specific things.

Clearly, I have dealt with John Morrell and other meatpackers
where there has been a problem. We've gone in there, and you've
got to make changes. At the same time, the problem is, where on
continuous improvement do you move to get what is an acceptable
level? If 80 percent of the population experiences a back problem
at some point in their life, what do you consider to be acceptable?

One of the other big problems that you have is with workers’
compensation, use of that data. I get involved in workers’ com-
pensation cases all the time. As you know, being from Indiana, it
wasn’t until very recently that CTD’s, in fact, were compensable in
Indiana. Therefore, you get an arbitrary big rush of CTD’s all of
a sudden.

One of the other big issues is, a simple aggravation of something
can cause it. Now, that doesn’t mean, as a physician, that you ig-
nore that. But at the same time, if a small aggravation can result
in a compensable injury, then your statistics go off.

Additionally, the use of symptoms is a problem. The problems
that we get involved with, for example, when you go from discom-
fort and fatigue and pain to a recognizable, diagnosable entity is
a different ball game. That means I like to work with diagnoses.
It’s very difficult to tell strictly from symptoms. I mean, if you do
a survey in this room right now of how many people have a pain
somewhere, I’m sure certain people have more pains than others,
but, additionally, it’s going to be very difficult to determine at what
point that occurs.

As far as trigger levels, I think that’s a very important under-
standing. Scientifically, I can’t tell you how much force and repeti-
tion an sture you need to produce something. Therefore, when
it comes down to advising companies and assuring companies that,
if you do this, you're going to be fine, another issue is, simply,
when you start to do symptom surveys, you will find a lot of symp-
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(Panu Wer) SATOLS SSAIINS NOLLIILON JINONODUA



20

_ Population indicates that there has been a greater than 7-fold
increase in such cases in the last ten years. In industries such
as meat packing, 13 out of every 100 workers report a work-
related musculoskeletal disorder related to repeated trauma each
year. In automotive assembly, 8 out of every 100 workers are
affected.

The number of work-related back injuries occurring every
year is even larger. Industries reporting a large number of
cases of back injuries include hospitals and personal care
facilities.

These disorders are the result of stresses to various body
parts caused by the way the work is performed. The positioning
of the body and the type of physical work that must be done to
complete the tasks of a job may cause persistent pain and lead to
deterioration of the affected joints, tissues, and muscles over
time. The longer time the worker must maintain a fixed or
awkward posture, exert force, repeat the same movements,
experience vibration, or handle heavy items, the greater the
chance that such a disorder will occur. These job-related
stresses are referred to as ‘workplace risk factors,” and the
scientific literature demonstrates that exposure to these risk
factors, particularly in combination with each other,
significantly increases an employee's risk of developing a work-
related musculoskeletal disorder.

One dramatic illustration of the societal effect of these

disorders is the skyrocketing cost of the workers' compensation


37

Mr. DEAR. We don’t have a standard which we are enforcing. It’s
difficult to answer in terms of how it would be done. Are there dis-
agreements between OSHA inspectors and employers about cita-
tions under current standards? Yes. Is there any new standard
likely to continue that issue? Certainly. There are lots of informal
means for resolving that type of discrepancy.

Let me note that about a million employers have to keep records
of their injury and illness, which they report to the Bureau of
Labor Statistics. Almost every State requires workers’ compensa-
tion insurance, and most of those States have provisions for provid-
ing benefits in cases of work-related musculoskeletal disorders.
Both of those would create information employers would have,
without any new regulatory obligation on OSHA's part, that they
have, potentially, a problem which may trigger an obligation, if
there is a standard.

Mr. MCINTOSH. When we get back—I want to recess so that we
can go and vote—I want to pursue that a little further, because,
to me, the statement that you are only going to have to address
ergonomics issues where there is a problem begs much of the prob-
lem with this rulemaking, which is that people have to go through
a fairly complicated decision chart and analysis about whether or
not there is a problem, and that there are enormous burdens put
on the economy there. I also want to talk a little bit about risk as-
sessment.

pect me recess the subcommittee, and we will come back after
that.

[Recess.]

Mr. MCINTOSH. The subcommittee will come to order.

Thank you for your patience, Mr. Dear and Mr. Woodward.

Let me turn now to a couple of the blowups there. I hope people
can see them. I hope you have a copy available. These were part
of the draft proposal that was circulated that kind of is and kind
of is not being used as the basis today for the agency’s work.

What I wanted to ask, as a threshold question, was, how many
times would you need to go through that survey in a job site? If
I understood you correctly before, there wouldn’t be a universal re-

uirement, but people would have a general duty to make sure that
they at least had assessed there wasn’t a risk. Is that a fair sum-
mary?

Mr. DEAR. There is an utterly simple commonsense couple of

uestions you need to ask: Do you have any workers’ compensation
claims that are work-related musculoskeletal disorders? Do you
have reports from your employees of difficulties as a result of their
work? Have you received any information from anybody who has
evaluated your workplace that would indicate that you may have
a problem?

ff the answer to that is no, that’s it. It’s very commonsense.
Every time you ask one of these questions, when the answer is no,
you have no obligation. You're out.

Mr. McINTOSH. So if somebody complains about a backache or
says, “I don’t think my work site is set up well with my computer.
I’m worried about ergonomics,” then that would trigger the obliga-
tion to go through this review?


157

I’ve been to other plants that run with employee involvement
programs, the Xerox plant in Rochester is one of them, and they
ave a partnership with our union. We have the same union, and
they work on the same problems we do: ergonomics, quality, and

productivity.

I hear the talk about cutting back on Government regulations
and enforcements, like the bill by Congressman Ballenger, to give
companies big loopholes to violate life and death safety standards
and big cuts in the OSHA inspectors. If you don’t have standards,
you don’t have inspectors; it doesn’t make a difference. So that
scares me. I don’t want to see my people take steps backward to
where we were 7 or 8 years ago.

Without OSHA, I don’t know where we would be. Our accidents
might have continued and might have cost my company enough
that maybe I wouldn’t be here. Maybe insurance and workers’ com-
pensation costs would have shut us down. The 300 people I sup-
port, my main goal is to keep them in jobs and be healthy.

T can't believe what I’m hearing. If you really knew what was
going on in my Plant and other plants that I'm associated with,
what’s good for the workers and employers, you would be telling
OSHA to get started with their standards and you wouldn't be
holding them back.

Since I started working on this, I’ve learned a lot more about the
bills to cut OSHA. From what I’ve learned about the bill by Con-
gressman Ballenger, it would turn OSHA pretty much into a non-
existent thing. They really couldn’t help the workers unless there
was already an accident or an injury, and they could only issue
warnings. That wouldn’t have worked at our plant, and that’s why
I’m speaking here.

I was going to say it’s just dumb, but that wouldn’t be very po-
lite. I just think it’s inappropriate to have a bill like that, that
takes away from the workers, the average guys like myself and the
people I support. And the management at Masland agrees with me.
That same letter to Senator Kassebaum, it’s with my testimony,
the whole letter.

They say, “We believe that strict, duly promulgated safety regu-
lations are good for all. Productivity, quality, and employee turn-
over are just a few of the significant performance standards that
are benefactors of increased safety performance and compliance
with safety standards.”

That doesn’t mean just guidelines, or not just consultants, or rec-
ommendation; that means just what it says. We need real stand-
ards, and we need a real enforcement program to back it up. We
can’t make inspectors wait till after people are injured or killed to
take action. This doesn’t help the workers, and it doesn’t help em-
ployers either.

T know that firsthand. I had a brother I watched taken out to the
hospital because of an accident at my plant. When you watch a
family member or friends go out to the hospital, it changes your at-
titude on things.

I see my time is up, but I have a couple more things I'd like to
finish, if I could.

Mr. McINTosH. Sure.

Mr. TREASTER. Maybe after what I say you won’t want me to.


57

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23

repeated, at rapid speed, for eight hours or more." He further
noted that: "The work was often so fast-paced that it took on a
zany chaos, with arms and boxes and poultry flying in every
direction." Poultry processing workers often develop carpal
tunnel syndrome as a result of their working conditions.

Other workers who are severely impacted are those whose jobs
require heavy lifting or moving. Nursing home workers are an
example of these--particularly those who must handle patients.
Por example, one such worker whose back was injured twice reports
she is now experiencing chronic pain, and is unable to perform
such personal activities as grocery shopping, lifting her
grandchild, or doing housework.

One of the ironies of the increased use of computers is that
highly skilled and educated workers are now also subject to the
development of these occupational disorders. For example, a
number of journalists or writers have found their lives and
livelihood affected by carpal tunnel syndrome developed from
keyboard use at work. One wrote an article she sent to us which
described her inability, at the age of 26, ‘to drive a car, type,
lift anything heavy, or even write with a ballpoint pen."

OSHA believes that the number and severity of these
disorders require that something be done to prevent them from
occurring. As a physician wrote to OSHA in a letter regarding
his experiences treating patients with work-related
musculoskeletal disorders: ‘The gradual shrinkage of virtually

all activities of daily living leads to a pitifully circumscribed


144

KELLER AND HECKMAN

July 12, 1995
Page 9

There are other ways to do this. Dr. James Mills, a researcher at the National
Institutes of Health, calls it data torturing/ That is, manipulating the data so that the
outcome supports the researcher's -- or, in our case, the regulator's -- point of view. This
is not tolerated in the private sector, either business or academia, when dealing with the
government, and it should not be tolerated in government, either, OSHA should
examine the scientific evidence regarding ergonomics to determine what is known and
what remains to be researched, in a public and open process, before plunging ahead to
regulate American industry broadly.

Additionally, there is one more thing OSHA could do to show that it is really
interested in finding out the real story. Recently, President Clinton announced a
reinvention at OSHA, a change to a more open and cooperative approach. Many of us
in the private sector welcomed this new effort. Unfortunately, we were greatly
disappointed when, three days later, OSHA decided that its ergonomics information
would not be included in the reinvention process, and rejected the FOIA request of the
National Coalition on Ergonomics for the scientific information supporting its draft
proposal. The Coalition is funding a scientific review of the literature on ergonomics --
something perhaps OSHA, or even NIOSH, should have done first -- and would like to
review the information OSHA believes is important. In light of their refusal to release
the data, one could infer that perhaps the data OSHA has does not support its action as
strongly as its public pronouncements would intimate.

Finally, 1 would like to comment on the process that OSHA has followed in this
particular regulatory area. Although some parts of the process have been visible to the
public and interested parties, most of the substantive discussions from the very beginning
involved a select group of "stakeholders" who were privy to what OSHA was considering.
Tt was difficult, to say the least, to obtain copies of documents circulated by OSHA as
part of these meetings, and the actual language OSHA was considering was not made
public until March of this year. Until that time, we had to rely on what participants told
about the project and on a summary of the draft’s provisions that was released
jally in June of 1994 and revised last September. As we all know, the devil is in the
details of these proposals, having the summary without the specific language led to much
speculation about what OSHA was really about.

‘There has to be a better way, and fortunately Congress has already provided it. I
believe that an advisory committee process would have permitted the broad spectrum of
interested parties to participate had OSHA chosen that route. OSHA clearly has the
statutory authority to create advisory committees under Section 7(b) of its own enabling
statute for the express purpose of setting standards under Section 6 of the Act, but to my

¥ A copy of Dr. Mills letter published in the New England Journal of Medicine on
this subject is attached.


90

An Urgent Message for Robert Reich
U.S. Secretary of Labor

We the undersigned nursing home workers are commited to providing the best possible care forthe
nation's nursing home resiients. Lifting and canng for our patients without adequate training, statt, and
‘equipment is causing capping iryunes to our backs and shoulders. The rate of inary mn hurting homes has
doubled in he last ten years, and our work is tast becoming the most dangerous job in America.

We that our injunes not only cause us pain and sutter.
1g, but cos! tamiy members and taxpayers hundreds of milions of dob
lars each year. We also recognize that the nursing home industry is
fone of the fastest growing in the country. Most of all. we recognize that
‘these mjunes can be prevented. We theretore ask you to act now to
‘top the epdemic and to pubish an OSHA standard to prevent these.
‘creping injuries in the nation's nursing homes.

“nn Dac

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172

Mr. McINTosH. Thank you very much, Mr. Treaster. I do appre-
ciate your coming, particularly traveling all the way from Penn-
sylvania to be down here.

Mr. TREASTER. Thank you.

Mr. McINTOSH. One of the theories in our committee is, we like
to hear from people outside of Washington, whether or not they
agree with my operating assumption. So I am pleased that you are
here and appreciate your taking the time to do that.

Mr. TREASTER. Thank you very much.

Mr. McINTOSH. Ms. Berkowitz.

Ms. BERKOWITZ. Mr. Chairman and members of the committee,
I want to thank you for the opportunity to testify, and I also want
to applaud you on bringing in and hearing from real people, which
I think is so important.

I have spent the past 17 years traveling around the country forg-
ing agreements between unions and companies in the food indus-
tries to prevent cumulative trauma disorders. These are very real
hazards that affect regular people, people that, for the most part,
are not in very glamorous jobs; they don’t get a lot of high pay.
They go to work every day. They hold up their end of the American
dream. They support their families.

And one day they get home, and their arm is not working, their
shoulders are not working, and their life turns upside down. I
think it’s a real insult to the people, a lot of whom we represent
in meatpacking and poultry, but also in supermarkets and health
care, to minimize these problems and to sort of obfuscate what the
real issue is.

Cumulative trauma disorders are the leading cause of occupa-
tional illness in the Nation. They are the most expensive disorders,
more expensive than when a worker loses a limb on the job. Not
only that, more people get hurt with cumulative trauma disorders
than get—or about as many get hurt with cumulative trauma dis-
orders than are affected by all hazardous chemicals in the work-
place.

The thing that sort of troubles me, as a workplace health and
safety advocate, is that, before OSHA even started writing this pro-
posal, a lot of myths started being spread about it, and industry
groups, who, long before OSHA actually put pen to paper, an-
nounced that the standard contained requirements, and I quote,
“which are not based on what we believe to be sound science.”

I just want to address one point that Mr. Sarvadi made about
recordkeeping, just to clarify it, and that is, for a company to have
to report a cumulative trauma disorder on their OSHA 200 log, it
has to require more than first aid.

In cther words, somebody can have aspirin or Motrin for 2 years,
and it never has to be reported. It’s not until they either have lost
work time or they get to have something that is not first aid, medi-
cal treatment, which is like Cortisone shots, which means you're in
@ serious stage of cumulative trauma disorders.

One thing about these disorders—and I know this goes against
the grain of your philosophy—is, their costs to workers and compa-
nies are very high. But even though the cost to companies was in-
credibly high, it was not until O: stepped in, under President


44

companies that heve been doing the right thing, and too often we
do that. We end up coming up with a rigid regulation that screws
up what we were trying to accomplish, because all of a sudden
you've got to follow all these rules, and if you don’t follow them ex-
actly, they are going to fine you, you know.

So are you going to—well, as we go through this process, are we
going to be able to tailor make this to companies, or are we going
to have a rigid, one-size-fits-all kind of a regulation? That’s what
I’m concerned about. Do you know?

Mr. Deak. It’s going to be performance oriented, which means it’s
going to be very flexible. Let me illustrate one way we have tried
to do that. We put in——

Mr. PETERSON. But I just have to tell you, my experience with
your agency up to this point is that it’s not flexible. I mean, I can’t
tell you how many times I've answered my telephone and gotten
the answer from your people that they realize what they are doing
makes no sense, but they can’t de anything else because that’s
what the guidelines say.

Mr. Dear. My phone rings too.

Mr. PETERSON, That’s what I hear too often.

Mr. DEaR. My phone rings too.

Mr. Peterson. And I’m tired of it. So, I mean, I hear what you're
saying, but I’m skeptical, OK.

Mr. Dear. Well, you have every reason to be skeptical, based on
experience, and I have to demonstrate with results that we're able
to implement the new directions we talk about.

dust to give you an example, OSHA was driven by performance
measures which said the number of inspections, the number of vio-
lations we found per inspection were key indicators of how we did
our work. Those are measures of activity, not of result. The per-
formance evaluations for our senior management right down to our
front line were built on accomplishing what everybody in OSHA
called “the numbers game.”

On October 1, 1994, we put in a system of goals that did not talk
about those numbers. I think a lot of the stories you heard are
based on an organization that oriented all its operations in that di-
rection. I put a stop to it.

I will send the report to the President, 15 initiatives. Your ques-
tion is going to be: “It sounds good, you know, are you going to be
here long enough to make it happen?” But I am committed to that,
Congressman.

Just one further thing about the ergonomics issue. We have not
issued a proposal. I mean, I can’t defend something I haven't done.

Mr. PETERSON. I understand.

Mr. DEar. One of the reasons is, I go out and I listen to people
who have the problem, who are concerned about how we develop
this. We're trying to take that into account. My goal is a standard
which is sensible to reasonable people, that meets a test. Then we
go into the formal hearing process and meet all of the statutory
and other obligations,

Safety and health is an issue where, when you solve a problem,
it works for the employer, because their costs go down, and it
works for the worker.


Ab-VG

Dear Mr. Secretary:

I am Joaquina Vargas. I am suffering carpal tunnel syndrome. This
illness is produced by certain sewing tasks, especially manual
works, that is to say when one or both hands are used.

Now I am feeling very sick. I have this illness since three years
ago, that is to say doctors discovered it.

Due to this matter I am feeling very depressed because of I can't
do anything with my hands at home. Everything is too difficult.
This illness also affects muscles of arms and neck.

Especially when tasks are piece work people put in a great effort,
more than any other way (and they are hurt more).

I would like to ask from you, for myself and for other people and
work system improvements.

I invite you to visit some factories in New York to verify bad work
conditions that are affecting workers in general.

Sincerely Yours,
Joaquina Vargas

1977 Eastern Parkway
Brooklyn, N.¥. 11233

- MAR 23 jog.


176

Mr. Chairman and members of the subcommittee, my name is Deborah Berkowitz
and I am the Director of Health and Safety for the United Food and Commercial Workers
International Union, which represents 1.4 million workers in the United States and Canada,
including over 135,000 in the meatpacking, poultry and food processing industries. The bulk
of my professional experience has been spent working with the various companies within our
union to prevent job hazards. In the past 15 years, the number one job hazard facing our
members has been cumulative trauma disorders (ctd’s).

Cumulative trauma disorders are not only painful and debilitating diseases, they
are also costly — to both workers and companies. From productivity losses on the factory floor
to medical losses -- the costs of these disorders run very high. Take carpal tunnel syndrome,
for example, where medical costs alone can run as high as $20,000 a case -- and this does not
take into account the costs of lost time or lost productivity. ‘This months publication of
CTDNEWS based in Haverford, Pennsylvania estimates that American employers spend more
than $7.4 billion a year in workers compensation costs alone on ctd’s, and an untold additional
billions on medical treatment and lost productivity. With hundreds of thousands of new cases
each year, these disorders are taking a huge bite out of a company’s bottom line.

Yet, despite the enormous costs, it was not until the Occupational Safety and
Health Administration (OSHA) began focusing their enforcement efforts during the Reagan and
Bush Administrations on these job hazards that most industries began paying attention to then.
‘Nowhere is this harder to believe than in the industries I am most familiar with -- meatpacking
and poultry. In meatpacking, for example, despite overall plant annual injury and illness rates
running between 30-50% in any given plant (i.e. between 1/3 and 1/2 of workers suffered a
serious job related injury and illness each year) -- preventing job hazards was always a back
burner issue. ‘The former chairman of the American Meat Institute, Kenneth Monfort, summed
it up best in an interview with the Chicago Tribune in 1988 when he said: *I guess there was
a little thinking that packinghouse work was tough and hard and dangerous, and that’s just the
way it’s gonna be." In the late 1980's, cumulative trauma disorders began to replace knife cuts
as the number one hazard in these plants.

Meatpacking, in fact, has the distinction of having the highest incidence of
cumulative trauma disorders in the nation -- with the industry reporting over 15,000 new cases
year. With the average packinghouse workers making up to 20,00 cuts a day on their job on
meat, that is frozen and hard, rates of cumulative trauma disorders began to skyrocket. Again
from Kenneth Monfort in that same interview: "It's obvious that we (the meat industry)
probably accelerated the problem (cumulative trauma disorders) in the last 10 or 15 years as we
broke down the jobs into pieces and said you do this one thing all day....I don’t think most of
us knew how bad we were.”


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1352 64thst.
Brooklyn, N¥ 11219



121

tinuity, that have some kind of formal structure, and who are
asked to provide collective advice to the agency, as opposed to a
meeting, an ad hoc kind of a meeting, with individuals. You are not
constituting a group and saying, “| Give me the group advice,”
and that group continues over time. Rather, you are just talking
to nae s of individuals, which is what OS! has done with the
stakeholder meetings.

Mr. McIntosu. Now, if they wanted to call some of them back
for another meeting, would there be a problem under the nego-
tiated rulemaking?

Mr. Woopwarb. Well, I think you have to look at several factors.
There are some definitions in the law and in various regulations
and case law, but if you’re not asking for group advice, but rather
are only trying to gather information, gather facts and get individ-
ual opinions rather than a group kind of advice, and if there is no
formal structure to it, and if it’s just these kinds of ad hoc meet-
ings, then_we wouldn’t consider that to be at all under the Federal
Advisory Committee Act.

It’s just an effort to try to find out from people out there—get
facts from them. In fact, the current executive order that we are
operating under requires us to consult with people who would be
affected Ey, maybe burdened by, or maybe benefited by a regulation
before we even propose the regulation.

Mr. SHADEGG. If the gentleman would yield.

Mr. McINTosH. Let me just ask one quick question: Are those
consultations then put into the record when you move forward with
a notice of proposed rulemaking?

Mr. Woopwarb. They can be.

Mr. McINTosH. But you don’t necessarily have to?

Mr. Woopwarb. What goes into the record will depend on the
nature of the rule that is proposed. Of course, matters that OSHA
considers relevant to that proposal could be put in the record. Now,
I don’t think transcripts, though, were made of these meetings.
There may be some videotapes of some of them.

Mr. Dear. Some.

Mr. WoopwarD. Information that OSHA thinks would be rel-
evant and helpful for people in understanding the proposal will be
what it will put in the record so that people can comment on it.

Mr. SHADEGG. If the gentleman will yield.

I’m a little confused, because we asked for transcripts and were
told there were no transcripts. We were told there were videotapes.
Are there, in fact, videotapes?

Mr. Dear. There are some. In some of the meetings that were
conducted outside of Washington the sponsors of the meetings did
tape them. For whatever videos we have of those sessions, we have
indicated we will make them available to the committee.

Mr. SHADEGG. OK. But you have not created a formal record of
what has occurred to date?

Mr. Dear. No. I know the question was to my attorney. He’s
probably going to slap my wrists here. But, you know, the idea

ere is to listen to people. The Advisory Committee Act is to keep
insiders from coming in and cutting a sweet deal and not having
the public involved. We've done everything we could to make this
information available, as I said, the Internet and these meetings.


124

Mr. Dear. Thank you, Mr. Chairman.

Mr. McINTOSH. Thank you.

{Recess.]

Mr. MCINTOSH. The committee is reconvened to order. If the sec-
ond panel could come forward, please.

The members of this panel are: Mr. David Sarvadi, who is an at-
torney with Keller and Heckman; Mr. Howard Sandler, M.D., who
is president of Sandler Occupational Medicine Associates, Inc.; C.
Boyden Gray, who had to leave, was scheduled to be a member of
this panel, and I would ask unanimous consent thai his testimony
be entered into the record; Mr. Rick Treaster, and Ms. Debbie
Berkowitz, who is the director of the Office of Occupational Safety
and Health, with the United Food and Commercial Workers Inter-
national Union. Mr. Treaster is the president of Local 2400, Amal-
gamated Clothing and Textile Workers Union.

[The prepared statement of Mr. Gray follows:]


31

But the rulemaking process is designed to elicit help from the
public in ascertaining the approach to take in the final rule.

OSHA has released to the public not only the pre-proposal
draft of the standard, but significant portions of the underlying
data review and analysis. The documents released include a
detailed summary of the health effects, with cites to the
scientific literature. In addition to providing the written text
to stakeholders, the draft documents were made available on the
Department's computer bulletin board. Over 4,825 copies have been
downloaded from this service. OSHA also arranged to make the
draft standard available on the Internet through ErgoWeb--an
ergonomics project run by the University of Utah. The University
arranged the access so that readers could comment on the draft
provisions and provide feedback to OSHA.

In addition to its internal analysis of the available data,
OSHA has conducted one of the most extensive outreach campaigns
on a draft standard in its pre-proposal stage to obtain public
input. This has included review of various parts of the
documents OSHA has developed by professionals in the field (for
example, physicians and nurses have reviewed the medical
management provisions and accompanying appendix); having
employers ‘field test" some provisions to see if they work froma
practical standpoint; and conducting stakeholder meetings to
obtain information regarding what should be in the standard, as
well as feedback regarding what OSHA included in the draft

Proposal.

7


156

reached that level. You know, if it had been 6 months or another
year, we could have had dozens more workers injured.

OSHA did come in, and the ergonomics were serious, and they
fined Masland, a citation and $7,000, plus they had to fix the haz-
ards. Masland appealed the citation, and Masland sat down with
OSHA and the union to negotiate a settlement agreement. After
many discussions, the company finally agreed to automate our
mol ing line to reduce the hammers you saw and the cutting. Fi-
nally, things started to change, and we had new automated knock-
outs and hands-free mold designs. Today we are roughly 50 percent
free of the tool you just saw.

What did the conversion cost? At first it looked like a lot of
money, but if you ask the company today, they will tell you, even
though they spent thousands of dollars to do this, they have made
it back many times over in higher productivity, reduced workers’
compensation costs, and our quality level has also increased.

The company had other good reasons to Spend the money on con-
verting the tools, too, but it was clear to all of us, if it wasn’t for
OSHA, they wouldn’t have made the switch. The other reasons,
like workers’ compensation costs, productivity, lower labor rates,
were not enough by themselves.

In fact, I have a letter from one of the Masland CEO’s, and it
was addressed to Chairman Kassebaum of the Senate Labor and
Human Resources Committee, and it says Masland Industries sup-
ports my testimony. “The relationship we have with his union and
OSHA was the dominant factor in the success” that I am portray-
ing to your committee.

, you know, the company agrees with what I’m saying. I think
that’s a good step. Our company was also cited by President Clin-
ton 2 months ago for the work they had done in reducing workers’
compensation costs.

at were the results of the ergonomics program? Overall, the
results have been very successful. In 1991, we started a real joint
safety program committee. We looked at preventing accidents in-
stead of investigating them after the fact, taking out some of the
ergonomic hazards. The committee usually works, but we have oc-
casionally had to go back to OSHA for help. We have also started
employee involvement programs, and that’s what I said earlier,
using the workers’ knowledge of production to improve the system
and make it run smarter.

Earlier you said to Mr. Dear, about automating tools, that you
were afraid it would cost jobs—with the cookie. Like I said, we
have, in 50 percent of our plants now, water jets, robotic arm water
jets, and we have increased our people from 230 in 1989 to 300 this
year. So that’s a good sign. And with today’s economy, I think
that’s a good thing.

Overall, we're more productive. We got rid of our individual in-
centive program. We put in a “gain-sharing” system, and we have
a decent payout for that every year. Our overall labor-management
relations are better. But, then again, we can’t forget how we got
started. Without OSHA, it might have gone on for a long time.
OSHA was the main force driving us to what we’re doing now. The
citation actually made my company move, so you can see why I’m

ere.


179

OSHA's efforts concerning cumulative trauma disorders, in fact, as I stated
before, were all started during the previous Republican Administrations. In 1988, OSHA
received a petition from employers requesting that OSHA develop a standard concerning
ergonomic issues. In 1990, former Secretary of Labor, Elizabeth Dole, announced that the
Department of Labor had decided to develop a permanent standard on cumulative trauma
disorders. In that same year, OSHA, under direction from the Secretary published guidelines
for the red meat industry on how to prevent these disorders through the implementation of
ergonomic solutions. The following year, the Secretary of Labor established the Office of
Ergonomic Safety Standards “specifically to develop a uniform regulatory approach to ergonomic
hazards in the workplace" (from letter dated April 17, 1992 from Lynn Martin to William
Wynn). Then in 1992, Secretary of Labor, Lynn Martin announced that OSHA supports
initiation of Section 6(b) rulemaking to address cumulative trauma disorders and will be
publishing shortly an’ "Advance Notice of Proposed Rulemaking (ANPR) in order to gather
information needed to develop a proposed standard on ergonomic safety and health." Then in
August of 1992, Acting Assistant Secretary Dottie Strunk, began the formal process of
writing a standard by publishing in the Federal Register OSHA’s intent to write a standard on
ergonomics and asking the public for comment. In this Advanced Notice of Proposed
Rulemaking, Ms. Strunk stated: "In recent years there has been a significant increase in the
Teported cases of cumulative trauma disorders in the workplace.....In response to this, as well
as other available information, OSHA is announcing the initiation of rulemaking under
section 6(b)5 of the OSHA act.”

The need for a standard was propelled forward in 1992 when an Administrative
‘Law Judge, hearing the only OSHA case on CTD's to go to trial, overruled OSHA because, on
these type of violations, and I quote: “The Secretary of Labor must promulgate a standard
to cover this very serious situation ~ and cannot rely on use of the general duty clause of the
law to issue such citations." [Over the past 20 years, OSHA had relied on this clause in the law
to cite employers for failing to reduce ctd's]. The judge in the case went on to remark, with
insight, in his decision that "I recognize of course that the very employers who are bitterly
attacking 5(a)(1) (the general duty clause) and are arguing for the promulgation of a standard
are the very industries that will come in and fight the creation of the standard and promulgation
thereof, to the utmost."

‘Of note in this case, Pepperidge Farm vs. the Secretary of Labor, the company
brought in Dr. Norton Hadler as their key witness to discredit the government's evidence that
cumulative trauma disorders were a serious work related injury. The judge, after hearing his
testimony, wrote in the decision that he found Dr. Hadler’s testimony flawed. In fact, the judge
concluded that after reviewing and analyzing all of the medical evidence "I find that a
preponderance of the evidence demonstrates that the work activities on the line at the biscuit
division was at least the precipitating factor in the disorders suffered by the employees on the
line......Further, I also find that the hazard was causing or likely to cause, serious physical
harm." Thus, in the only ctd case to go to a hearing, a judge overruled Dr. Hadler’s line of
thinking and established the veracity of ctd's being work related, serious disorders.



the physicians’ oath reads, OSHA should “first do no harm.” That is just
common sense.

Its second objective should be to issue its regulations and conduct its
enforcement and compliance in a manner that generates public confidence
in OSHA. When OSHA fails in its first objective, it further erodes public
confidence. OSHA has failed on both!

Before we hear from our witnesses this morning, I would like to make it clear that
1 strongly believe we need safe workplaces. It is outrageous grandstanding to say ovr
regulatory reform efforts are an attempt to gut worker safety or health. Our purpose is
to be smart about protecting worker safety -- and not impose stupid requirements or
rules s0 costly that they cause loss of valuable jobs. If the net result of OSHA's work is
that more Americans are out of jobs, it has failed to protect worker safety.

‘What isn’t clear is whether one single, sweeping, one-size-fts-all rulemaking is the
key to ensuring safety, especially when grave questions still exist about the scientific basis
of the regulation. If the Ergonomics rulemaking has truly been terminated, then we
rust ensure that "backdoor* regulation to enforce unsound Ergonomics principles
doesn’t occur.

‘There are over 6 million business establishments under OSHA's jurisdiction,
including over 4.4 million small businesses. These businesses employ more than 96
million workers. (And as my colleagues well know, Congress also will soon fall within
‘coverage of the Occupational Safety and Health Act and of this particular standard when
adopted.)

I want to refer briefly to a section of the draft proposal. It is mind-boggling to
think about formally reviewing every one of those 96 million jobs for Ergonomic effects -
+ but that is what the original rulemaking would require according to the “signal risk
factors" which are inherent in every job (p. 4, draft proposal). It is also frightening to
think about how many of those jobs may be eliminated before they are reviewed.

For example, in OSHA's case against Pepperidge Farm, the company was in
violation of Ergonomics standards for the method by which its workers assemble Milano
cookies ~ for “capping” or putting the two halves together, and “cupping” or placing the
cookies in paper cups. If such jobs are in violation of an Ergonomics standard, will they
then be replace by machines? Other examples of Ergonomics violations cited in the
proposal include actions most workers perform daily -- workers would be prohibited from
repeatedly pinching small binder clips or twisting their necks in the way we all cradle a
telephone receiver. A questionnaire in the draft proposal asks employers of computer
users if their employees are allowed to determine their own pace, and discourages
employers from using any incentives to work faster. In other words, employers would not
be allowed to encourage productivity. If the Ergonomics rulemaking is truly dead, we
have saved more than just the enormous cost involved.


189

KELLER AND HECKMAN
July 12, 1995 .
Page 4

aside the question of whether these cases should have been recorded in any event, the
result is that at least part of the reported increase over the last ten years is an artifact of
the data collection and enforcement system. Yet OSHA often presents data showing
that the number of RSI cases is rapidly rising ~- as the attached graphic depicts for
reported cases over the last ten years -- but fails to mention the possibility that the data
may be skewed.

In the early 1990's, OSHA made a similar effort to get industry to report cases of
hearing loss by changing the criteria for recordability. The changed criteria would have
increased the number of hearing loss cases reported even if there were no change in any
‘employee's hearing anywhere in the nation. The manner in which OSHA attempted to
make the change, however, was its undoing, and is important for this Subcommittee
because it reflects the agency's predilection to avoid what it perceives as a costly and
inefficient process. Instead of meeting the challenge of proving their case head-on as
they are obligated to do under the enabling statute and the Administrative Procedures
Act, OSHA staff often engage in what I call “stealth rulemaking,” by changing substantive
requirements through enforcement and internal memoranda. The following describes
the proposed hearing loss recording change, an example of this approach.

In 1983, as part of a rulemaking on noise exposure, OSHA determined that
hearing changes (called standard threshold shifts and measured by required testing of
exposed employees) would not have to be recorded. In 1990 and 1991, OSHA tried to
change this determination by a “policy change” -- not by notice and comment rulemaking.
Along with others, we at Keller and Heckman successfully challenged this change in
policy on the grounds that because the then-current criterion was adopted as part of a
rulemaking, the proposed change would also have to be subject to notice and comment,
and OSHA backed off. Nevertheless, industry received the message and employers
began recording, as cases of hearing loss, changes in hearing that exceeded the criteria
OSHA proposed, while others continued to record at a predetermined, albeit higher,
limit. The reporting criteria are presently the subject of another OSHA rulemaking.

With respect to the ergonomics proposal under development, this change in
industry behavior, completely intentional on OSHA’s part, may have also contributed to
the increase in reported cases of repetitive trauma. I believe it is fair for this committee
or Congress to ask how much of the reported increase is the result of ergonomic factors
in the workplace - OSHA's apparent contention -- and how much is an artifact of the
changes OSHA made in the reporting requirements and enforcement of these
obligations.

The attached graphic mentioned above illustrates how the public discussion can
be affected by not telling the whole story. The computer in the graphic is misleading; an
analysis of the BLS data suggests that most of the reported cases arise from work
unrelated to computers, The ten industries represented 43% of the total number of


147

I just fst contacted by one of the largest pharmaceutical compa-
nies in this country recently, and they said, well, they went ahead
and did an ergonomic program. They started to do symptom sur-
veys, and lo and behold, they found symptoms. Then they contacted
some local physicians, hand surgeons, particularly, who wanted to
surge—excuse me—cut.

And that’s part of the problem that you run into is that while
there is clearly a problem on the high side, high risk, high force,
some of my people on my scientific advisory board, Gunnar Ander-
son, Steve Moore, Aruhn Garr, all these people, we know there are
problems.

But Aruhn, for example, who was one of the principal architects
of the NIOSH lifting guide and manual, he used a very small num-
ber of people. It has never been clinically validated, and that is
something that is listed in OSHA’s guidelines. They know it is not
clinically validated. NIOSH just let a contract to validate, and I’m
looking forward to that.

I think what OSHA has done is tremendous. I think OSHA has
opened the discussion gates. I think that there is a real opportunity
now to make focused research to do things and, at the same time,
address the real problem areas, and there’s no problem with under-
standing where those are. I think that’s what we should be
targeting.

Last but not least, I think, in terms of acceptable levels of CTD,
that is what I would like to focus on briefly, and that is that I don’t
know what an acceptable level of CTD is. We have a problem in
that I don’t know how much carpal tunnel syndrome should be in
the normal workplace. We do know that carpal tunnel syndrome is
caused by pregnancy, rheumatoid arthritis, and many, many other

ings.

Some of the recent studies by Peter Nathan and other people
have said that psychosocial factors are major. For example, there
was a recent study by Berquist, two of them published in, I think,
March Epidemiological Journal, which showed that there was no
difference in musculoskeletal condition incidence between VDT
workers and non-VDT workers, including VDT workers who work
more than 20 hours a week on their jobs.

So when you start to put all this together, what I think you start
to find is that there is a “loosey-goosey” area where we should be
careful how we tread. We should continue to research, let’s look at
the real clear indicators, but not get too bogged down.

I see that my time is just about up. I thank you very much for
your time and your attention. I will be happy to answer any ques-
tions at the appropriate time.

[The prepared statement of Dr. Sandler follows:]


153

hazard, OSHA performed a preliminary risk assessment. As all of you
are aware from the recent debate on the proper use of risk
assessment in regulation, the scientific basis for this evaluation
is difficult at best. Again, the use of symptoms and poor data
collection techniques severely limits the gathering of information
necessary to determine risk and the likelihood of controlling the
underlying hazard. For example, OSHA recently changed the
definition for musculoskeletal disorders from an injury to a
disease. By this simple change, an epidemic of cumulative trauma
disorders was instantly created. OSHA also used workers’
compensation data in its risk assessment. Anyone who has attempted
to control workers’ compensation costs, knows that it is virtually
impossible to defend a CTD claim in many jurisdictions because the
rules allow for a minimal work relationship to the disease process,
i.e., an aggravation, and the case is deemed to be a compensable
CTD. This clearly exaggerates the risk assessment estimates. In
fact, the use of this data is a surveillance tool which seeks to
generate hypotheses by including the largest possible number of
adverse health effects. The workers’ compensation process is geared
to include, as compensable, as many “injuries/illnesses" as
possible; and thus, once again, symptoms are frequently all that is
required to achieve benefits. Lastly, the basis for correcting an
ergonomics "problem" is questionable in that many programs, some of
which are extremely expensive in nature, often do not produce real
diminution in symptom or disease levels. As I previously mentioned,
I have been involved in both successes and failures. The one
failure I would like to cite involves a big-three automotive
manufacturer who, after millions of dollars, did not drop their
“disorder " level; one of the reasons for which may be the recently
recognized impact that workplace psychosocial factors, such as job
satisfaction, has on musculoskeletal symptom reporting.

Summary and Conclusion

Musculoskeletal disorders have plagued mankind forever. Their
attendant costs to industry, government and society are
unacceptable. New approaches are presently being researched to
identify risk factors, standardize recognition, treatment, and
rehabilitation and provide for control or abatement of work-
associated causal agents. The OSHA draft Proposed Ergonomic
Prevention Standard has helped to crystallize the task we see before
us. It has identified deficiencies in the science where further
research is sorely needed. At the same time, these deficiencies
prevent the promulgation of a broad-sweeping regulation at this
juncture. My best advice is to step back and assess what can be
done with the current level of knowledge, i.e., regulate specific
hazards or industries, provide training and guidelines, and develop
a task force from government, acedemia, health care, industry and
labor to build on NIOSH’s, OSHA’s, ANSI‘s and other efforts to date,
to set forth a coordinated research agenda with funding from all
sectors. My own experience is that done right, the savings in terms


46

It drives people crazy, and it’s what is driving this antiregulatory
attitude that you’re seeing in the Congress and, frankly, I’m part
of it. I’m tired | of this. I don’t think that I was elected to Congress
to spend 60 percent of my time trying to straighten out Federal bu-
reaucrats. That’s not why I ran for Congress, ut that’s what I do.
That’s what my office does all the time.

We need to change this, somehow or another. I think the chair-
man and I are committed to convening this committee every day,
if that is what it takes to shed light on this so it changes. Maybe
it’s not you that we need in here; maybe it’s these people that are
working in your offices out there in the field that we need in front
of this committee. I don’t know.

Anyway, I've gone on long enough.

Mr. Dear. But you raise a really important point, which is about
the management of the agency, and that tends to get obscured
when we fave these discussions about policy issues. What really
counts is what happens in the field, with the front line. You may
not have come to Washington to deal with that issue, but I did, be-
cause, ultimately, the effectiveness of these programs and the value
that taxpayers and employers and workers develop from them is
based on that implementation.

I am intensely interested in this question—and I know you're
busy, Congressman—but I would be pleased to come visit with you
and describe a major effort that we’re doing to drive the message
that OSHA needs to focus on results to everybody in our organiza-
tion, and to allow our front-line workers to take out the red tape
which inhibits them from doing the job, whether it’s enforcing or
advising employers about how to get a safer and healthier work-
place.

pu PETERSON. Well, I would appreciate that. Why don’t we do
that.

The other thing is, if you would take a look at this HASIP situa-
tion and give me some kind of report back in writing about wheth-
er there is, in fact, the potential of more workplace injuries because
of what they are looking at, I would appreciate that, as well.

Mr. Deak. I'll do that.

Mr. PETERSON. Thank you.

Thank you, Mr. Chairman.

Mr. MCINTOSH. Thank you, Mr. Peterson.

Mr. Gutknecht, do you have any questions?

Mr. GUTKNECHT. Mr. Chairman, I do, at least a couple of quick
ones. I know we've got to vote, so I'll try to be as quick as I can.

Mr. MCINTOSH. We can take a recess.

Mr. GUTKNECHT. Do you want to take a recess and then we will
come back?

Mr. McINTosu. I didn’t know whether there were a lot of ques-
tions for the witness or——

rr. ‘CHT. Because I think Mr. Scarborough and Mr.
Shad may have questions, as well.

Mr. McINTOSH. y don’t we take a quick recess first, and then
come back.

The committee will be in recess.

(Recess.]


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OPENING STATEMENT =

‘THE HONORABLE DAVID M. MCINTOSH Serge:

Hearing on OSHA's Regulatory Activities
and Processes Regarding Ergonomics

July 12, 1995

Today's hearing will focus on OSHA's regulatory activities on ergonomics. Not
only has the rulemaking itself been controversial, but OSHA's regulatory approach,
especially in the face of Congressional opposition, raises questions that need to be
answered, First, I want to commend two of my colleagues -- Chris Shays who chairs the
Government Reform and Oversight Subcommittee on Human Resources and
Intergovernmental Relations which has oversight responsibility for the Department of
Labor, and Cass Ballenger who chairs the Education and Economie Opportunities
Subcommittee on Workforce Protections. Their leadership and excellent work has made
{reat inroads on this issue. At this time, 1 ask unanimous consent that a statement
submitted by Mr. Shays be entered into the record of this hearing.

OSHA's Ergonomics rulemaking was identified early in the 104th Congress as a
likely candidate for coverage by H.R. 450, the regulatory moratorium. It's 600+ page
draft proposal is hard to miss. After an official publicly indicated her intent to
defy the moratorium, Congress passed a ;stop Work Order" on this rulemaking as part
of H.R. 1158 and H.R. 1944, the 1995 Re}eissions Bill. That "Stop Work Order” is now
under consideration in the Senate,

Last month, press accounts reported that OSHA had abandoned the rulemaking,
and many members of Congress now believe that the Ergonomics issue is dead.

As Congress continues its review of comprehensive regulatory reform proposals in
HLR. 9, S. 343, and other bills, it is important to establish the status of OSHA's
Ergonomics regulatory activities. Are OSHA's Ergonomics efforts over or not?

As [am sure that the Assistant Secretary for OSHA well knows, OSHA's
objectives should be two-fold:

Its first objective should be to establish scientifically sound regulations that
conform to statutory requirements and that do more good than harm. As

i


40

proaches. So there is a variety of work going on to enhance our un-
derstanding.

Mr. MCINTosH. Let me ask one other question, then I will defer
to some of my colleagues.

You mentioned that in the meatpacking industry there was a
problem with repetitive motion. A slightly different issue: Has
OSHA looked at the proposed mega reg that your colleagues over
at the Department of Agriculture are proposing to determine, one,
under ergonomics, whether it fits the standards that you would
have proposed, but also, two, some of the issues, in terms of expo-
sure to high temperature settings and some of the issues there in
the interagency process, is that something that you have input
into?

Mr. Dear. No, not directly. Now, officials of the American Meat
Institute met with me and relayed that concern that there was po-
tentially an interaction between the—I believe it’s called —HASIP
regulations and OSHA’s concerns about ergonomics.

talked to an Agriculture Department official who said, “If this
is an issue about which you have any concern, please feel free to
call me, or I will designate a staff person which you can make a
comment—” and the iculture offeial said, “We're in the com-
ment stage, and I'll certainly let you know when the comment
stage is concluded.”

just yesterday I received a copy of the AMI comments to the De-
partment of Agriculture’s HASIP regulations, and they drew my at-
tention to that concern. So we are aware of it.

Mr. McIntosh. One of the problems we have been encountering
in the corrections process is that there are various regulatory poli-
cies and programs in place that give employers conflicting require-
ments in this area.

When this came to my attention, it sounded like the potential,
in both cases—that neither of them are finalized rules at this point,
obviously—but the potential was there for that to happen, if both
of them went forward. I would urge you to intervene in the inter-
agency process, with OIRA and others, to make sure that doesn’t
happen and that there is some consistency.

But then that really raises a larger question: What happens
when there are activities on the job site which simpl can’t be cor-
rected, ergonomically, in order to accomplish the task? What do you
contemplate empioyers doing at that point?

I mentioned the Pepperidge Farm cookie example. That may or
may not have been able to ee corrected. An easy solution to that
is to eliminate the job and to have it be mechanized. There are oth-
ers where you need human input or human activity involved in it,
and it may be impossible to eliminate the ergonomics problem.
What is the agency's solution to that issue?

Mr. Dear. I'm going to just respond to your first suggestion, that
we be in touch with other agencies. That’s a great suggestion. I
think there is lots of opportunity for the regulatory agencies to im-
prove by communicating. That's true wit iculture, EPA, or
other agencies. I appreciate that suggestion, and I will followup on

t.

The question—I can put it the way I heard it from one employer
group I met with, the Coalition on Ergonomics—what do you do


120

are you managing this? Back to my CEO, have we got the account-
ability, the internal system in place? If he says yes ——

Mr. SHapveEcc. And that he should put that employee on a diet
or—I'm sorry.

Mr. DEAR. No, that he’s looking at serious hazards that his work-
ers are exposed to.

Mr. SHADEGG. He has no option but to look at those hazards. I
mean, in the construction business, you’ve got to look at hazards.

Mr. Dear. Yes. So we're saying, the first I want to know is, is
he trying to manage those risks? Is he actively engaged—because
then I’m going to say, I’m going to take a quick look around this
constructionsite, flaw hazards, trenching hazards, electrical haz-
ards, things that kill construction workers, and if it looks like ev-
erything is OK, we're out of there. I mean, that’s a program we call
‘focus inspection” in construction, and we are running it nation-
wide.

If he says “No, I’m too busy.”

Mr. SHADEGG. He’s not too busy.

Mr. DEAR. OK. Then we will take somebody else. Then we will
look at the fall hazard, but we’re going to say, are the exposure to
falls in excess of the requirements of the standard? It doesn’t mat-
ter how much a worker weighs.

Mr. SHADEGG. Well, it does, I mean, if the harness is designed

rotect somebody at a certain weight and won't protect some-
body at a certain other weight. I’m just trying to understand how
you create a single standard for a diverse society,

I said before, I understand your job is extremely difficult. I think
I would find it nearly impossible. Given the task we've given you,
you know, I think you've got to do your best. I just think we've
Probably given you an impossible task.

Thank you very much.

Mr. Deak. It’s a challenge. I must say, looking at your job, I won-
der—the enormous sacrifice and effort you go to serve the people
in your role in Congress. I mean, these are all difficult assign-
ments.

Mr. SHADEGG. Thank you.

Mr. McINTosH. Thank you, John.

T have one question, then an observation. Mr. Woodward, maybe
you want to address this.

When you are conducting, or the staff is conducting the stake-
holders meetings, are you giving them advice on how to comply
with the negotiated rulemaking requirements, or are those stake-
holder meetings not done pursuant to that particular statute?

Mr. Woopwarb. No, those aren’t negotiated rulemakings.

Mr. McINTosH. They look a lot like them, where you are bringing
in outside parties and trying to go over language.

Mr. Woopwarp. I think you may be referring to the Federal Ad-
Hisory Committee Act, which does establish some requirements if
the Government wants to make use of an advisory committee to
provide policy kinds of advice. A negotiated rulemaking committee
1s one kind of advisory committee.

Mr. McINTosH. For which there are separate requirements.

Mr. Woopwarb. Right. And there is a separate subset of require-
ments for that, as well. It applies to groups that have some con-


19

of a proposed rule. OSHA believes that this first step is
critical. It represents the agency’s initiation of the formal
public participation process, the only process that assures that
fgvervone who is interested will have the opportunity to provide

written comments and oral testimony. In this sense, the proc:

of publishing « proposal represents the ultimate peer review of
OSHA’ s data collection and analysis, as well as the underlying

science.

Scope of the Problem

OSHA estimates that work-related musculoskeletal disorders
in the United States range from more than 700,000 lost workday
injuries and illnesses (30% of the all lost workdays reported to
BLS) to more than 2.7 million annually awarded workers
compensation claims because employees work in jobs that are not
properly designed. These jobs appear in all types of industries

and in all siz

of facilities. Many of these disorders can be
prevented by the application of ergonomics in the workplace.

They occur in exposed workers -in all parts of their bodies--
the upper extremity, lower extremity, and back. An example of
the magnitude of the problem involves repeated trauma to the
upper extremity, or that portion of the body above the waist, in
forms such as carpal tunnel syndrome and shoulder t rifhitis. mn
1993, employers reported 302,000 upper extremity repeated trauma
cases, for example, while in 1981, the number was only 22,700.

Adjusting the data to reflect changes in the size of the employee


14

to go forward in the structured public hearing process that agency
rulemaking must go through. This would allow all interested par-
ties to bring their views into the record.

OSHA, when it considers this, must take all of that information
on the record and make its decision based on substantial evidence
on the record taken as a whole. We also need to address voluntary
and nonregulatory approaches to this problem, cooperative partner-
ships, er education, more research, and develop, as I said, a
balanced approach to rulemaking,

We have made a concerted effort to develop an ergonomic pro-
posal using many of the concepts that are now being considered in
the various regulatory reform bills the Congress is considering. We
have made a preliminary assessment of the costs and benefits of
the regulatory alternatives, and we believe the benefits, even when
conservatively estimated, significantly justify or, dare I say, out-
weigh the costs.

An initial risk assessment has been conducted and suggests that
workers are exposed to significant risk. These studies have been
done using currentl accepted scientific methodology. Extensive ef-
forts have been made to obtain public comment and professional re-
view of the documents at an early stage. We would look forward
to the rigorous peer review which typically follows publication of an
OSHA proposal.

Following the publication of the proposal, there would be a period
for written comments on the proposal and a public hearing to allow
oral testimony and questioning among all the parties about the
basis of the information that they used to conclude their various
policy recommendations, and, finally, a posthearing comment pe-
tiod that would also be able to provide further information for the
record.

Despite all of our careful work to date and our desire to take this
to the next stage, efforts are being made to stop the rulemaking.
OSHA believes that the best way to proceed is through a thorou;
public debate on this critical problem and to arrive at the most ap-
propriate, effective, and feasible solution, and the way to do this is
through an open deliberative process.

Intervention at an early stage in this process precludes a major-
ity of the public from participation and may prejudge the issue
without regard to the facts. I don’t think this is in the interest of
either goo regulation, good employment practices, or good science.

OSHA would be happy to provide any additional information we
have to further these discussions. Ultimately, we believe that the
well-founded and balanced public process of addressing ergonomics
should be allowed to continue, in the interest of protecting workers
and for the benefit of concerned employers, as well.

Mr. Chairman, thank you. I would be pleased to answer ques-
tions if you have any.

[The prepared statement of Mr. Dear follows:]


Page Two/Shays Statement/July 12, 1995,

Until we have a better idea of the specific factors that cause ergonomic injuries, a broad
rule such as the one proposed by OSHA may do little to prevent ergonomic injuries. It would,

however, significantly increase paperwork costs for businesses -- and those costs will ultimately
be passed on to workers through lower wages and consumers through higher prices.

Businesses already have a powerful incentive to address ergonomic injuries in the
workplace. Where ergonomic injuries contribute to workers’ compensation costs companies will
want to take action on their own. Programs to reduce workers’ compensation costs already
include many of the safety standards contained in the proposed rule.

But rather than issue a rute that affects every business regardless of relative risk, OSHA's
resources at this time might be better used by working with companies to identify the causes and
solutions for ergonomic problems where they are known to exist.

OSHA should take a more cooperative and less prescriptive approach to ergonomics. The
Human Resources and Intergovernmental Relations Subcommittee will continue its oversight
responsibilities on this issue with that in mind.


182

H.R.9 and S.343 are needed. Like $.1080 before them, these bills
do nothing more really than codify the executive orders and make
them enforceable in court so that they are indeed adhered to.
There is something unfair about proclaiming the advent of smart
regulation because of a superior Executive Order and then
opposing efforts to enforce it. Yet that is what we appear to
have here, and I hope this hearing will lend support to S.343 as

it is pending in the senate.


110

two members who indicated to me they would like to ask a couple
questions, if I could indulge you to wait a few more minutes.

Mr. Dear. I'll be here.

Mr. McINTOSH. The committee will stand in recess.

[Recess]

Mr. MCINTOSH. The committee will come to order.

Thank you, Mr. Dear. I hope somebody got you a sandwich dur-
ing one of these recesses. I haven’t gotten one yet—maybe some
cookies—between the two of us.

Let me turn now to Mr. Shadegg who has some questions.

Before I do, let me acknowledge somebody who is very special
with him, his son Steven is here, who is 8 years old, and if he has
any questions, we will let John ask them for him.

ir. Shadegg.

Mr. SHADEGG. Actually, Mr. Chairman, I was going to have my
son do the questioning, but I won't do that.

Mr. Dear, I notice you have some staff members with you. I
spent a great deal of my life in the Arizona Attorney General’s Of-
fice in a staff capacity. I think it would be nice if you introduced
the staff members who are with you. Would you do that for us?

Mr. Deak. I would be happy to do that. Thank you.

Mr. Woodward is from the Solicitor’s Office. Let’s see, we have
Gary Orr, who is a member of the ergonomics team and is a
ergonomist. Sitting next to Gary is Jennifer Silk, who is now the
leader of the ergonomics team. She has been a stalwart in the
Health Standards directorate of OSHA for many years. Sarah
Shorthall is with the Solicitor’s Office and has also been a member
of the ergonomics team.

Rich Shiesta is with our Congressional Office. He’s here to make
sure I mind my manners, I guess. Bruce Cohen is with the Solici-
tor’s Office. And Adam Finkel, Dr. Adam Finkel, is director of our
Health Standards operation. John Slauheim is with our Policy Of-
fice. And Ann Chang is a Presidential management intern serving
with OSHA at this time.

There are many others who stand behind these folks back in the
Perkins Building, who produce this work we have been discussing
today.

Mr. SHADEGG. Great. Thank you very much.

I doubt if anybody doubts that ergonomics is an issue and that,
in fact, workplace injuries can occur as a result of repetitive things
or things which are done in a way that is not good for our bodies.
So I don’t think that’s the issue here, but I do think there are other
issues.

Let me ask you, just briefly, what is your background? I under-
stand you were in the health field or the State regulatory health
field in the State of Washington; is that correct?

Mr. DEAR. Prior to my coming to Washington, DC, I was director
of the Washington State Department of Labor and Industry. I was
responsible for a large workers’ compensation operation, the actual
insurance operation.

Mr. SHADEGG. So you were involved in workers’ compensation.

Mr. Dear. Yes, sir.

Mr. SHADEGG. Prior to that position, what did you do?


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24

life style that is difficult for many to bear.* Work conditions
which lead to such disorders cannot be considered a “safe and

healthful workplace,” nor are they trivial matters of discomfort.

What is “Ergonomics?”

Ergonomics is the science which prevents injuries to workers
by fitting the job to the person, rather than the person to the
job. An ergonomic evaluation would examine the jobs or tasks,
the workstation, equipment used, and processes needed to complete
the work. Then these elements of the work environment can be
designed or modified so that workers can perform safely. When a
job is designed without considering the worker, it will not be
done in the most efficient or effective manner. Use of
ergonomics design principles is good for business--both in terms
of productivity of the work process and quality of the product.

“Ergonomics” is thus the solution--not the problem.

Availability of solutions

The evidence OSHA has collected over the past few years
indicates that the problem is significant and suggests that there
is a strong basis in medical science to initiate rulemaking in
this area. This evidence has led to the agency's conclusion that
a common sense strategy regarding ergonomically-related hazards
must be developed. OSHA believes this strategy should consist of
consultation, training and education, labor and industry

10


143

KELLER ap HECKMAN
July 12, 1995
Page 8

specific set of conditions would cause injury. Their conclusions state the current
scientific situation most succinctly:

© Repetition - cannot identify hazardous levels.
. Force - insufficient data, not independent.

© Posture - requirements cannot be quantified.

. Work organization - unable to establish limits.

. Environmental factors - insufficient research for guideline.

‘As John Howard, of the California OSH Standards Board said after the decision
by the BOard to reject the proposed California ergonomics standard last November,
“[uJhere is virtually no agreement among the affected groups on a means to effectively
regulate the prevention of [CTD}.”

NIOSH belatedly appears to be getting serious about ergonomics research.
Recently, NIOSH announced in the Federal Register requests for proposals on ergonomic
interventions, Buried within the criteria for assessing the proposals is the issue of the
relationship between the currently-favored risk factors and the injuries and illnesses of
interest. Investigators are told that, in their research proposal, “[issues to consider
include assessment of the level of exposure prior to the injury and . . . how the job where
the injury was noted was changed to reduce the risk of injury to workers."

But a larger problem is evident in the case of OSHA's efforts to develop an
ergonomics standard. 1 am old-fashioned enough to believe that the government --

‘ially the government's scientists ~- should turn square corners. The failure to do so
leads, I believe, to a general decline in confidence in government by its citizens. What I
mean by square corners is that the people who regulate have the obligation to be
scrupulously honest about what they claim the scientific evidence shows, to consider data
that contradict their beliefs as well as those data that support their position. This is what
is meant believe, by consideration of the eoord a x whole. Many government
scientists are careful to follow their scientific training, and to identify those situations
where the science is unclear and public policy considerations must take over.
Increasingly, however, some of OSHA's staff seem to be willing to forego scientific rigor
in the pursuit of their personal beliefs on how to achieve the goals of the OSH Act.
They do this in part by manipulating the data and telling only part of the story, as in the
case of the BLS numbers described above.



10

eral comments about the new directions that OSHA is taking in
order to place this effort in a larger context.

In the past several months, you and other Members of Congress
have heard lots of stories about OSHA. They tell of incompetent in-
spectors citing and fining employers thousands of dollars for
nitpicky violations that appear to have nothing to do with worker
safety and health.

Most of these stories, almost all of them, have no basis in fact,
and they obscure a story which you may not be hearing, and that
is that OSHA has succeeded in preventing injuries, illnesses, and
deaths in America’s workplaces, and that we are making signifi-
cant changes in the agency now to improve its efficiency and effec-
tiveness.

The plain truth is that OSHA saves lives. Since its creation in
1970, OSHA has performed invaluable services to millions of Amer-
ican workers and employers. Through the agency's protective
standards and its enforcement program, as well as efforts by mil-
lions of responsible employers, the workplace fatality rate in the
United States has declined significantly.

Looking at the 23-year period before OSHA was created, the av-
erage annual decline in fatalities was 139 per year. But since
OSHA was created, that decline improved to 204 per year. Couple
these numbers with the more rapid increase in employment since
1970, and the results are even more dramatic, an estimated 27,000
lives saved to 1993 alone. This is a 57-percent reduction in the rate
of workplace fatalities since OSHA was created, and it is an un-
questionable improvement.

But citing improvements and successes is not to say that the sta-
tus quo is acceptable. OSHA is changing the way it does business.
As announced by President Clinton on May 16, OSHA has begun
regulatory reform initiatives to enhance safety, trim paperwork,
and transform the agency. OSHA is working to carry out the Presi-
dent’s commitment. The reforms are now being implemented and
they are changing the agency’s culture to ensure that we ade-
quately protect workers without imposing unfair burdens on em-
ployers.

There are three elements to this strategy of improving OSHA’s
effectiveness. The first is giving employers a choice between a part-
nership or a traditional enforcement relationship. We want to help
those employers who want help, to provide them with assistance.
We want to recognize their effort in terms of how we work with
them and how we may relieve them, in terms of penalties and cita-
tions, if they are making appropriate progress toward improving
workplace safety and health.

But for those employers who disregard their obligation to provide
a safe and healthy workplace—and, Mr. Chairman, the sad fact is,
some still do—we will continue to vigorously enforce the law.

Our second principle is commonsense regulation. OSHA is chang-
ing its approach to regulations by eliminating or fixing confusing
and out of date standards, by identifying clear and sensible prior-
ities for new rules, and by employing performance-based ap-
proaches where feasible. As part of this effort, OSHA is going to
rewrite many of its standards into plain language.


141

KELLER AND HECKMAN

July 12, 1995
Page 6

been shown to be caused by repetitive motions or work generally. Under current rules,
back cases are reported as injuries, regardless of the underlying cause. This was a
decision made over twenty years ago to simplify reporting because, as is still the case
today, discerning the “cause” of much of what is reported as "low back pain" is difficult if
not impossible.

Nevertheless, many of the "back” cases reported in the BLS statistics are the result
of a single event, which may or may not be traumatic. Commonly reported descriptions
of the cases are: hurt while lifting something, bending over to pick something off the
floor or to tie a shoe, falling against something. Some in OSHA and the ergonomics
community speculate that constant activity and stress on the back leads to progressive
degeneration, as manifested by low back pain.

Certainly there is a kernel of common sense to this; we all feel it as we age every
day. But the suggestion that work is a principal cause of this process is inconsistent with
the fact that we spend as much time off the job performing the same kinds of motions --
albeit on different tasks, including hobbies and sports -- as at work. Worse, OSHA
would require the entire U.S. economy to "change" the workplace on the basis of this
unproven speculation, in spite of the fact that non-occupational causes of back injuries
represent a significant proportion of all such injuries in the U.S. population. A major
concern of employers is that, because of the loose criteria for determining that a
condition is work-related ~ any condition "aggravated by" work is included -- the data on
back injuries is biased upward and many cases are not the result of activities at work.
Indeed, all repetitive trauma injuries have significant non-occupational causes and risk
factors, from obesity to pregnancy to sports to hobbies. OSHA needs to be sure it is
focused on workplace injuries and illnesses.

The second problem with OSHA's approach is that the decision to do something
presumes that OSHA knows what to do, that what will be done will have a material
benefit on the rates of illnesses and injuries to be addressed. This is, in fact, the current
statutory test OSHA must satisfy before imposing any requirement on employers.
Whatever OSHA requires employers to do must result in a substantial mitigation ~ if not
the total elimination ~ of the risk of injury or illness OSHA seeks to prevent. With
ergonomics, al] of the current proposals and approaches amount to mandates to
experiment by trial and error: lighten the load, slow things down, try something else.

¥Y We should note in passing the recent report by the select committee on Low Back
Pain, which says that 80% of Americans will at some point in their lives suffer from low
back pain. The report also suggests that the best treatment for most low back pain
complaints appears to be a short rest, then a return to activity at the individual's own
pace. This suggests that perhaps a substantial part of what is reported in the BLS
statistics may not be significant from a overall health perspective.


184

Mr. McINTosu. Thank you very much, Ms. Berkowitz.

Again, I thank all of the panel for coming and persevering with
us. I have a couple questions for several of you.

Ms. Slaughter, welcome. I appreciate that.

First of all, Mr. Treaster, let me mention to you—because I’ve
been working with Mr. Ballenger on OSHA reform—the purpose
there is actually to create incentives to replicate the experience
that you had in your factory, where there were problems that were
identified. In that case, they had a fine, and that triggered the re-
sponse of the management and the union to work together to try
to identify and come up with a solution to it.

There are other cases where people feel very strongly that the
fine is issued really as a punitive matter. And what Mr. Ballenger
is seeking to do is, by first giving people an opportunity to correct
the problem, with a warning citation, to give people in the industry
and in labor an opportunity to work it out and try to reach a solu-
tion before the Government comes in with a punitive fine.

So look into it a little bit more. It’s not exactly the topic of this
hearing, but I have been working with him somewhat on that legis-
lation, and the goal, at least, is to replicate the type of behavior
that you described that was successful in getting movement toward
greater safety on that.

Mr. TREASTER. I understand that. My company is fairly progres-
sive. I deal with a lot of other people who I talk to at union func-
tions, and I’ve been around to a large variety of companies. My
company is pretty progressive, and it took that fine to get them
going. Without being penalized, some people just aren’t going to
Move.

Like Mr. Dear said, and I agree with that, I’ve seen companies
that are very progressive and they are far beyond anything OSHA
could do for them. My company is heading that way in a hurry. We
have pretty much bypassed that. But there are people I know that
their companies aren’t going to move unless they are kicked in the

utt.

Mr. McINTosH. But don’t you think, if your company is actually
saving money and is more productive, that you are going to put
them out of business?

Mr. TREASTER. Pardon?

Mr. McINTosH. Well, I mean, if your product is more competitive
because of these changes, and they are able to lower the costs of
workers’ compensation, and so forth.

Mr. TREASTER. A lot of the companies in my union don’t do what
I do with the auto industry. A lot of them are sewers, needlework
people, and our union has a wide variety of people we're not actu-
ally in competition with. Those companies, I guess, just aren’t
aware of that. They are not bright enough to figure it out.

Mr. McINTosH. Let me switch, because we are limited in time
and what we have to do. There were a couple of numbers that I
wanted to try to reconcile and make sure I understood. Mr.
Treaster and Ms. Berkowitz both mentioned that—first of all, I
guess Ms. Berkowitz mentioned that she thought the most signifi-
cant workplace injuries or disorders were in the area of ergonomics.


29

In addition to the public comments, OSHA has reviewed an
extensive selection of scientific literature and other
information related to ergonomics, such as the BLS statistics
previously described and workers’ compensation data regarding
accepted claims for work-related musculoskeletal disorders, to
form the basis for development of a proposed standard. Literally
thousands of articles have been identified and reviewed. In
addition, OSHA conducted a computer-assisted telephone survey of
more than 3,200 establishments in order to determine current
practices in industry. It is the largest data base available
regarding the extent of workplace risk factors present in various
jobs and industries, and provides indications of industry's
response to the problems identified. OSHA has supplemented the
survey results by conducting site visits to establishments with
programs, and reviewing available case studies.

One of the criticisms we have heard from opponents of this
rulemaking is that there is not enough ‘science’ to support the
standard, or that the agency does not have sufficient information
available. We do not find these arguments convincing given the
large amount of available literature and data much of which
provides solid evidence regarding this problem, although the
conclusions of the available literature and data are not entirely
uniform. OSHA's job is to protect employees to the extent
feasible, based on the best available evidence. In some cases,

this involves a more limited data base then we have for

15


166

So { respectfully ask that your Committee took for ways to help companies
protect workers, and keep our jobs, like OSHA did for our plant That's what the
governmont Is supposed to do, instead of lelting companies take advantage of
workers who can't defend themselves.

‘Thank you for giving me the apportinity 10 spaak, I'l be glad to answer any
questions a6 best | can,

Rick freaster, Presisent

ACTWU Local 2400

75 Foxfire Road

Lewistown, PA 17044 717-242-0385 (daytime)


186

Ms. Berkowitz, do you have any comments on that?

Ms. BeRKowrITz. No. It’s sort of how BLS looks at that.

Remember, this is all industry-reported data, so there is also the
factor of how accurate that is. But if you look at all the causes of
occupational illnesses and injuries, what I said is, repetitive trau-
ma disorders is the single largest cause of these disorders. There’s
a whole chunk of injuries and illnesses that are caused by contact
with an object, but that could be machine guarding, lockout, falling,
falling from a ladder. There are, you know, hundreds of different.
causes within that.

So if you just look at specific causes, then cumulative trauma dis-
orders in the workplace—and I guess my point is that I don’t think
these are everywhere, and I don’t think OSHA ever thought that
they were everywhere. And, I mean, I’ve seen these OSHA drafts
floating around. I think OSHA is still trying to figure out how you
get to where the problems are but, you know, not sort of exclude,

ou know, the one or two plants in a certain industry where there
is a lot of problem, but that industry is OK, and for some reason
they are having a problem.

nl think that’s difficult, and they are struggling with it. Before
they even——

Mr. McINTosH. They have ignited a huge opposition by getting
very broad in their reach. So I appreciate your insight that they
are struggling with that.

Let me now turn to Ms. Slaughter. I appreciate your coming. Any
questions you have or statements?

Ms. SLAUGHTER. Thank you, Mr. McIntosh, I’m glad to be here.

Ms. Berkowitz, I remember quite clearly, when I was first here
in Congress on this committee, despite hundreds of hearings later,
the one that sticks in my mind more is the one about IBP. The
workers came in, and they evoked for us what it was like to work
in a plant where there was fat from the animals, grease, blood all
over the floor, easy to lose your footing, repetitive motions with the
knives, in addition to the danger.

The ‘pom eople who came in, in their early twenties, who were
lame for life because their job was to stand at the bottom of the
chute and, as the cattle came down the chute, hit them in the leg,
hip. They all came in on crutches, as I recall.

if I remember correctly, in that one small town, it was the larg-
est employer, but the turnover was about 90 percent a year, mostly
because of injuries.

Ms. BERKOWITZ. That's right.

Ms, SLAUGHTER. And everybody, Practically, that lived in the
town somehow was scarred, hurt, damaged, from working in that
plant. And it did lead, I think, the Reagan administration to levy
the largest fine they had ever done against an industry in this
country, which, I think, later was sort of negotiated down. But I’m

lad to hear you say that lots of changes have been made. It would

e tragic if we turned the clock back on that.

The human capital in an industry is extraordinarily important,
despite the fact that I think it’s being denigrated more and more.
But the idea of leaving someone in their thirties, for the rest of
their lives, to be impaired, unable to get other work, nobody should
be allowed to do that to another human being.



98

Ergo Stakeholder Meetings/Outreach, page 3

National Association of Home Builders

National Erectors Association

National Construction Association

Painters and Allied Trades

Sheetmetal Workers

United Brotherhood of Carpenters and Journeymen

Town Meeting
March 4, 1994
Milwaukee, Wisconsin
Allen Bradley
GE Medical Systems
Harley-Davidson

Midwest Institute of Occupational and Environmental Safety and Health
Northwestern Mutual Life Insurance

Oshkosh B’Gosh.

Patrick Cudahy Incorporated

PPG

Quad Graphics

Strauss Brothers Packing Company
General Industry
March 10, 1994
Washington, D.C.

AFL-CIO

Amalgamated Clothing and Textile Workers Union
American Insurance Association
International Brotherhood of Teamsters
Liberty Mutual Insurance Company
Motor Vehicle Manufacturers Association
National Association of Manufacturers
National Broiler Council

Organizational Resources Counselors
United Food and Commercial Workers
United Auto Workers

Agriculture
March 25, 1994
Washington, D.C.

American Farm Bureau Federation
American Association of Nurserymen
California Department of Labor and Industries


140

KELLER AND HECKMAN

July 12, 1995
Page 5

repeated trauma cases reported in 1992. Computer work does not appear to be one of
the top ten.

A closer look at the BLS data reveals a more complete picture. As discussed by
Tom Leamon,v in Professional Safety magazine in May 1995, in 1992, repetitive trauma
cases represented a small fraction, about 4.1 percent, of total reported cases. When we
look at only those cases which resulted in lost workdays -- time away from work with or
without restricted activity, a commonly used measure of injury and illness severity -- the
proportion of cases related to repeated trauma drops to less than 4% of the total —
89,900 out of approximately 2.33 million lost workday cases. If repeated trauma were an
increasingly important factor in the toll of occupational injury and illness, one would
expect the proportion of severe repeated trauma cases to be a larger percentage of all
severe cases, rather than a smaller proportion. Unfortunately, the way BLS reports the
data and the amount of discussion of repetitive trauma data in comparison to other
causes of injury and illness leaves the impression that these cases constitute a major
source of occupational injuries and illnesses. Tom Leamon’s point is well taken: BLS
should stop manipulating the data and its report to make it appear that RSI is a major
cause of occupational illness and injury. There are more important fish to fry.
The Impact of Data on Policy Choices

OSHA also appears to have been greatly influenced by these data. Of course, we
do not know whether OSHA's decision to develop an ergonomics standard preceded the
BLS decision to highlight repeated trauma cases. But when we analyze OSHA's overall
budget for standards development in light of these data, we are compelled to ask why so
much effort has been spent on this project. In 1994, OSHA budgeted $9.1 million for
standards development, of which reportedly $3.5 million was spent on the special
ergonomics team. A case of misplaced priorities? Common sense would tell us so, and
most Americans do think OSHA should spend more time on accidents that kill people
rather than on “ergonomics.” The recent poll conducted by the Torrance Group, pollster
of record for US, News and World Report, shows that 52% of Americans agree that
fatal accidents are a higher priority; only 9% think ergonomics is an important priority.
Figure 2 shows what the respondents to the survey thought should be high on OSHA's
priority list.

But, OSHA says, there are 650,000 back injuries also -- hence the over 700,000
cases recently reported by OSHA in testimony on Capitol Hill - that could be prevented
by ergonomic redesign of the workplace! This assertion points up two more problems
with OSHA's current approach. First, not all -- indeed, not even most -- back cases have

V _Dr. Leamon is Vice President of Liberty Mutual and Director of Liberty's famed
Hopkington Research facility. A copy of his paper is attached.


91

U.S. Department of Labor sistant Sorta
Washington. D.C. 20210

July 11, 1995

The Honorable David M. McIntosh

Chairman

Subcommittee on National Economic Growth,
Natural Resources and Regulatory Affairs

Committee on Government Reform and Oversight

House of Representatives

Washington, D.C. 20515-6143

Dear Chairman McIntosh:

This is in response to your letter of July 5, 1995, requesting
written answers to a number of questions regarding the
Occupational Safety and Health Administration's (OSHA) activities
in the area of ergonomics.

The status of the Ergonomics Rulemaking and Enforcement:

1) If and to what extent does OSHA believe its ergonomics
regulatory activities would be covered by H.R. 450 if
enacted as passed by the House of Representatives?

We understand that it is the Committee's intent that for the
purposes of H.R. 450 "imminent threat to health or safety" does
not include conditions that may be covered by a proposed
ergonomic protection standard. To that extent, H.R. 450 would
preclude the promulgation by OSHA of an ergonomics standard
during the period of moratorium.

2) If and to what extent does OSHA believe its ergonomics
regulatory activities would be covered by the ergonomics
restriction in H.R. 1158 if such a bill had become law?

It appears that under the terms of H.R. 1158 as currently
written, for the duration of this fiscal year OSHA would be
precluded from publishing a proposed standard to protect workers
exposed to ergonomically-related hazards, or non-mandatory
guidelines that would assist employers who wish to voluntarily
address these hazards in the workplace.

3) If and to what extent has OSHA or an OSHA representative
ever expressed publicly during this administration an intent
not to comply with any proposed legislative restriction
regarding ergonomics?

No OSHA representative in this Administration has publicly
expressed an intent not to comply with any proposed legislative
restriction regarding ergonomics.


11

The third principle is focusing the ney on results, not red
tape. Many employers have complained that OSHA inspectors care
less about worker health and safety than they do about meeting
perceived quotas for citations and penalties. Now, we have never
used quotas, but we have measured our performance in terms of
numbers of inspections, number of citations, and amount of penalty
dollars collected, but not anymore. This year, this fiscal year, start-
ing October 1, 1994, OSHA ended that practice.

would be pleased, in the question and answer period, to elabo-
rate, at your pleasure, on these initiatives further.

Let me turn now to the subject of the hearing, ergonomics. The
problem is work-related musculoskeletal disorders; the solution is
ergonomics. Ergonomics is the science of fitting the work to the
worker rather than the worker to the work.

OSHA estimates this problem is huge, that work-related mus-
culoskeletal disorders in the United States range from more than
700,000 lost workday injuries and illnesses, 30 percent of all the
lost workdays reported to the Bureau of Labor Statistics, to more
than 2.7 million annually awarded workers’ compensation claims
because employees work in jobs that are not properly designed.
These jobs appear in all types of industries and in all sizes of facili-
ties. Many of these disorders can be prevented by the application
of ergonomics in the workplace.

Now, these occur in exposed workers in all parts of their bodies:
the upper extremities, the back, the lower extremities. An example
of the magnitude of the problem involves repeated trauma to the
upper extremity, or that portion of the body above the waist, in
forms such as carpal tunnel syndrome and shoulder tendinitis.

In 1993, employers reported 302,000 upper extremity repeated
trauma cases, while in 1991 the number was only 22,000. That is
a sevenfold increase, after adjusting for the size of the employer
work force. In industries such as meat-packing, 13 out of every 100
workers report a work-related musculoskeletal disorder each year.
In automotive assembly, it is 8 out of 100 each year. The number
of work-related back injuries occurring every year is even larger.
Industries reporting a large number of back injury cases include
hospitals and personal care facilities.

Now, these disorders are the result of stresses to various parts
of the body by the way work is performed. The positioning of the
body and the type of physical work that must be done to complete
the tasks of the ib may cause persistent pain and lead to deterio-
ration of affected joints, tissues, and muscles over time. The longer
time the worker must remain in a fixed or awkward posture, exert
force, repeat the same movements, experience vibration, or handle
heavy items, the greater the chance a disorder will occur.

These job-related stresses are referred to as workplace risk fac-
tors. The scientific literature demonstrates that exposures to these
risk factors, particularly in combination with each other, signifi-
cantly increases employees’ risk of developing a work-related mus-
culoskeletal disorder.

In economic terms, it has been estimated that up to one-third, or
$20 billion, of employer-paid workers’ compensation benefits and
premiums is associated with work-rela musculoskeletal dis-


Ergo Stakeholder Meetings/Outreach, page 2

Stakeholder Meeting Invitees/Attendees
Note: Although not listed, at least 2 OSHA staff participated in each meeting.

Health Care/Dental
February 10, 1994
Washington, D.C.

American Hospital Association

American Health Care Association

American Nurses Association

American Federation of State, County, and Municipal Employees
American Dental Hygiene Association

American Dental Association

Home Health Services and Staffing Association

Service Employees Intemational Union

- Office Work Environment
February 16, 1994
Washington, D.C.

9105’

Aetna Insurance

‘American Federation of State, County and Municipal Employees
American Newspaper Association

Center for Office Technology

Communication Workers of America

Herman Miller Office Furniture Company

IBM
Newspaper Guild
Construction
February 17, 1994
Washington, D.C.
AFL-CIO

Associated General Contractors of America

Associated Builders and Contractors

Bechtel Construction

Center for Protection of Workers’ Rights

International Brotherhood of Painters and Allied Trades

Intemational Union of Operating Engineers

International Brotherhood of Electrical Workers

Intemational Association of Bridge, Structural and Omamental Iron Workers


187

So I'm happy to hear you say that IBP has since then become
a model; is that correct?

Ms. BERKOWITZ. Well, I have to say that, in many ways, I owe
it all to you and the committee hearing that IBP was brought in,
because, after that hearing, OSHA did go into the plant and fine
them $5 million. I think what was most notable about IBP’s re-
sponse is, they didn’t contest it; they didn’t drag it up through the
courts; they pst stopped.

And, yes, I mean, it has become a model, in terms of ergonomics
and health and safety. And you are all welcome, I'm sure, to go in
the plant, because it has done such great things.

is. SLAUGHTER. Another thing I recall in some of those hearings
is, there was always the trouble of people keeping double books on
injuries. And I hope that that also has stopped. But there were
some really pretty terrible things happening. It was almost 19th
century conditions under which people were working.

I think that, when we talk about repetitive damage, people think
that this is new, and I think that they really need to understand
that the people who had worked in that particular industry prob-
ably are lame for life there. But I was really surprised at the 770-
percent increase in this last decade. Do you think those are actual
increases in hurts, or are they better reporting?

Ms. BEeRKowiITz. I think it’s a little better reporting. After all,
what they discovered in 1987 was, President Reagan had put in a
policy that if your injury and illness rate was below a certain num-

er, you didn’t get inspected by OSHA. So companies started lying
on their records.

Ms. SLAUGHTER. Right. That’s why they had the double books.

Ms. BERKOWITZ. Right, and keeping two sets, a real book and not
a real book. So what happened is, injury and illness rates started
going down in the country. Then they slammed a couple of compa-
nies for keeping real books and books they showed OSHA, and the
companies started reporting more accurately.

At the same time, the Government started going after cumu-
lative trauma disorders. But in meatpacking, the increase is very
real. You see, in the 1970’s, packinghouses were very different;
they looked different than what they look today.

‘oday there are massive assembly lines where a worker does the
same exact cut 10,000 to 20,000 times a day on meat that is often
frozen and hard. They no longer have the right to sharpen their
own knife. They are rarely trained. As you said, turnover in these
plants is incredibly high, because it’s tough, hard work, and people
get hurt and they have to leave. Because, you know, it’s an employ-
ment at will, if you’re not in a union plant, and they can fire you.

So it’s because of these changes in the industry that you see this
increase in cumulative trauma disorders. The thing is, industry can
prevent them. On some jobs they have automated them. We

aven’t lost one worker, but they have been automated. On other
jobs, they have lowered conveyor belts. On other jobs, they have re-
designed knife handles. On other jobs, they have built mechanical
assists to help workers actually make the cuts that they are doing.

So there are ways, given this sort of type of industry, that you
can prevent these disorders.

Ms. SLAUGHTER. Thank you very much.


102

Ergo Stakeholder Meetings/Outreach, page 7

Agriculture
March 29, 1995
Washington, D.C.

American Farm Bureau Federation

American Association of Nurserymen
California Rural Legal Assistance Foundation
Farmworkers Justice Fund

George Washington University

National Migrant Resource Program
National Cotton Council

National Council of Agriculture Employers
Society of American Florists

Health Care/Dental
March 29, 1995
Washington, D.C.

American Nurses Association

American Federation of State County and Municipal Employees
American Medical Association

American Dental Association

American Hospital Association

American Health Care Association

American Dental Hygiene Association

Home Health Services and Staffing Association

Service Employees International Union

Office Work Environment
March 30, 1995
Washington, D.C.

"9 to 5’

Aetna Insurance

AFL-CIO

Center for Office Technology
Communication Workers of America
Herman Miller

IBM

Newspaper Association of America
‘The Newspaper Guild




118

Mr. DEAR. We have a draft proposal, but it is not a proposal that
T have approved.

Mr. SHapEGG. OK. I didn’t hear the earlier discussion about
these things.

This is that little binder clip that is used prominently in my of-
fice. Is this discussed in that proposed rule, or addressed? I mean,
I don’t know.

Mr. Deak. I don’t know for certain. I'll be sure to check.

Mr. SHADEGG. OK. Here’s my question. I heard you explain ear-
lier—and I thought that was a good point—that we would
through this self-evaluation, an employer would go through a self-
evaluation to determine whether or not you came in under the
ranking, the five points.

ly own question to that is, I don’t know an office in America—
I came from a law office, but pick any other kind of office in Amer-
ica—where these aren’t used and where they aren’t squeezed, actu-
ally recreationally, for the release of tension. I mean, seriously,
often by people.

I don’t know, if I were filling out that form, if I would have to
inventory my employees and find out if they used these, and if
some of them squeeze them to relieve tension, or some of them
squeeze them just to put them on files. And I just wondered if that
means, at least, that offices would come under the standard.

Mr. Dear. Offices could come under the standard. In one of the
appendices, we do talk about pinch grips, and we say, if you've got
somebody doing this 2 to 4 hours a day, you may want to check
into it,

Mr. SHADEGG. Psychologically, probably.

Mr. Dear. Now, if you’ve got somebody in your law office squeez-
ing these clips 2 hours a day, you know, if I were paying your hour-
ly rates, I would want to know what that person is doing.

Mr. SHADEGG. They are the depressed employees I talked about
before, where we need to do mental health counseling, I think.

Mr. Dear. Yes, well, something that is beyond the scope of
ergonomics. Pinching is a force and something that needs to be
thought about.

But, look, when I think about the serious problems that workers
are experiencing as a result of work-related musculoskeletal dis-
orders, I’m not thinking about people using paper clips or alligator
clips. I’m thinking about people in poultry Processing or
meatpacking plants, where we know, based on the employers’ own
reported data, based on workers’ compensation, that there is a tre-
mendous volume of injuries.

I mean, I think every day, right now, people working, same mo-
tion over, and over, and over again; they hurt. And then, some of
them hurt so much they require surgery; they lose their jobs.
That’s the problem we're trying to address, not pinch grips.

Mr. SHADEGG. Sure. No. Fair enough. I appreciate that.

Let me—one other just quick thought. I suffer from a weight
problem. And I wonder, has OSHA—I mean, there are some jobs

or which, if I have a weight problem, and to the extent that be-
comes a significant weight problem, it could be dangerous for me
to do that job. Does OSHA look at, in any area, the employee’s fit-
ness for a particular job and, for example, things that employees


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16

OSHA the decline has improved to 204. Couple these numbers with
a more rapid increase in employment since 1970, and the results
are even more dramatic -- an estimated 27,700 lives saved in 1993
alone. This 57 percent reduction in the rate of workplace
fatalities since OSHA was created is an unquestionable
improvement.

OSHA is changing the way it does business. As announced by
President Clinton on May 16, OSHA has begun regulatory reform
initiatives to enhance safety, trim paperwork, and transform the
agency. OSHA is working to carry out the President's commitment.
The reforms which are now being implemented are changing the
agency's culture -- to ensure that we adequately protect workers
without imposing unfair burdens on employers.

In order to accomplish this, we are making every effort to

involve the agency's stakeholders in our regulatory proce For

instance, OSHA has been working closely with business and labor
to develop revised recordkeeping requirements, utilizing the
services of the Keystone Group to facilitate the process. OSHA
is also undertaking a systematic effort to identify the leading
causes of workplace injury, illness and death, in order to
establish the agency's rulemaking priorities. We have solicited
input from stakeholders through mailings, a Federal Register
notice and a series of meetings. We have received more than 100
written comments and direct participation of nearly 200
representatives of labor, industry, professional and academic

organizations. When completed, the priority list will reflect a


160

Good morning. Mr. Chairman, members of the Subcommittee, my name is Rick
Treaster. | am President of Local 2400 of UNITE!, the Union of Needietrades,
Industrial and Textile Employees (a merger of the Amalgamated Clothing and Textile
Workers Union and the International Ladies Garment Workers’ Union).

| work at the Masiand Industries plant in Lewistown, Pa. The Lewistown plant
produces floor mats for the auto industry. We mold full floor and trunk parts for
Chrysler and Ford. We take rolis of carpet, cut them down, and bond a plastic heelpad
‘on with electricity. We then heat the carpet mat to a certain temperature and move the
mat to a press that looks like the inside of your car floor, and mold it using alr and
hydraulic pressure. After the molds are sealed, we cut off the excass trim. After the
molding is finished, we lift the mold head and either knock out or cut out holes for the
bolts that hold your car seals, and for the emergency brakes or gear-shift levers.

Masland has eight plants in Pennsylvania, Ohio, !tinois, Michigan and
Wisconsin. It is the largest supplier of carpeting to the auto industry. The company's
headquarters and largest production piant is in Carlisle, PA. The 900 UNITE members
there -- as well as some of the 300 in our plant — live in the district of Bill Goodiing,
Chairman of the House Committee in charge of the OSHA law.

Many people today are talking about cutting back on government regulations. |
am here today to tell you about the good things that happened in our plant because of
government regulations. | am here because if you do cut back on government Job
Safety regulations, you will cause many workers to suffer serious injuries on the job.
You will also cause many employers to pay out large amounts in workers
compensation costs for these injuries. This is money which they could be spending to
create good-paying jobs making products in America.

I've worked at Masiand in Lewistown in the Molding Department for over 15
years. When | started there, It wasn't too bad except that it was very dark. Soon after,
things changed. About 6 months after | came, the company put in the "Maynard"
system. Maynard Is a movement-based standard for setting production quotas. You
are given so much time to finish a task, based on the specific movements for the task.

In other words, everything in production was based on speed and physical
effort. Because of the speed we worked, it seemed like every night someone got hurt
or injured, We had three or four people with knives and hammers working on each
mold press, hitting a die up to 4,000 - 6,000 times per night. With everything based on
Production, we only got dies sharpened at break. For two hours until a break, a worker
could hammer a dull die.

Many workers came in every day with their arms and wrists hurting. Most
workers put up with the pain to support their families.

1


99

‘Ergo Stakeholder Meetings/Outreach, page 4

California Rural Legal Assistance Foundation
Farm Labor Organizing Committee
Farmworkers Association of Florida
Farmworkers Support

Farmworkers Justice Fund

George Washington University

Migrant Clinicians Network

National Council of Agricultural Employers
National Migrant Resource Program
Teamsters

Town Meeting
March 31, 1994
St. Paul, Minnesota

Town Meeting
April 11, 1994
Atlanta, Georgia

D.L. Lee and Sons
General Motors

Georgia Tech University
Goldkist, Inc.

Holder Construction
Russell Corporation
Seabord Farms of Athens
Shaw Industries

Telecommunications
July 27, 1994
Washington, D.C.

Ameritech

AT&T

Bell Atlantic

MCI Telecommunications
Sprint Corporation

U.S. West


21

claims related to them. Work-related musculoskeletal disorders

now account for an

tounding one out of every three dollars
spent on workers’ compensation. It is estimated that employers
spend $20 billion a year in direct costs for workers’
compensation, and up to five times that much for indirect costs,
such as those associated with hiring and training replacement
workers.

In addition to these monetary effects, these disorders often
impose a stunning personal toll on workers who experience their
effects. We have heard people say that OSHA is promulgating a
“comfort” standard, and that every minor ache and pain in the
workplace will now be regulated. This is simply not true. Any
proposed ergonomics standard would focus on those jobs with the
highest risks. The workers whose livelihoods have been curtailed
as a result of these disorders, who have suffered permanent
disability, and whose quality of life has been drastically
impaired, deserve attention to this compelling and serious
occupational health problem.

The Department of Labor has received over a thousand letters
and more than 10,000 petition signatures from workers asking OSHA
to promulgate a standard to prevent work-related musculoskeletal
disorders. Theré has rarely been such broad grass roots demand
for an OSHA standard in the agency's 25-year history. This far-
reaching support is due to the fact that ergonomic-related

disorders are widespread, crossing over all industries and all


50

Mr. GUTKNECHT. I can quote you on that?

Mr. Deak. I’m here under oath.

Mr. GUTKNECHT. All right. Let me go to one other question, and
I think it is an important one. I see my time has about expired.
T hope the chairman will let me finish this.

at differences do you see—or maybe, could you talk a little bit
about cost versus benefit analysis? Again, many of us feel that
that’s very important, because we hear all these examples of $50
solutions to $5 problems. Could you talk a little bit about costs/ben-
efits? What do you think are reasonable? We didn’t really get an
answer, in terms of what about that job that cannot be made
ergonomically acceptable.
me of the other problems we have is that some employers,
whether they are putting together cookies or processing turkeys,
they could export some of these jobs to Mexico and other places.
That's not what we want them to do. So can ye talk a little bit
about cost/benefit analysis? I mean, what would you see to be an
acceptable way to measure this?

Mr. DEAR. The law and interpretations of it require OSHA to
consider the technical and economic feasibility of its standards.
That means, in every standard we develop, even very inexpensive
ones, we must look at the cost and the benefits to the economy, and
in some cases we look in great detail at specific industrial sectors.
We have to take those into consideration. They must be adjusted.

One of the things we have done in developing the ergonomics

roposal is a survey of 3,200 firms, asking them lots of questions:

0 you have a problem? What have you tried to do? How much did
it cost? What were the effects? In fact, the largest single expense
we have incurred to date in developing the standard is that survey
that provides the basis for the economic evaluation.

When we publish a proposal, the economic effects are discussed
in that proposal. They are then subject to review in the public
hearing process. One of the things about OSHA hearings that is
different from many others is that all of the participants in the pro-
ceeding have the opportunity to question each other.

So it’s not just the agency sitting up listening; it’s the labor folks,
the business folks, the experts. And when one side presents, the
other side can ask. It’s all in the record, and I and the Secretary
are required to consider all of that information, taken as a whole,
before we make a decision.

So I think it’s extremely important to get information about costs
arid benefits. The process we use does develop that. And specifically
on ergonomics, we have paid a lot of attention to that. Depending
on how you structure a proposal—and remember, we don’t have a
specific Proposal out there—you show enormous improvement in
terms of benefits versus costs. I mean, the benefits swamp the
costs.

This is not a case where there is some close call or there is a
mandate that requires us to do something which, in fact, imposes
more cost than benefit, far from it.

One final note: I don’t know how you puta dollar figure on some-
body whose hand doesn’t work, who can’t button a shirt, comb their
hair, pick up a child. But there are thousands of workers in this


95

2) Please provide a transcript of each stakeholder meeting
listed above.

There are no written transcripts of the stakeholder meetings.
‘The Department does have videotapes of some of the meetings which
we will provide to the Subcommittee upon your request.

3) Does OSHA intend to use the information gathered at these
meetings to promulgate an ergonomics rule or standard or to
enforce ergonomics principles under the general duty clause?

4) If OSHA does not intend to use the information gathered at
these meetings to promulgate an ergonomics rule or standard
or to enforce ergonomics principles under the general duty
clause, for what purpose does OSHA intend to use the
information?

The primary purpose of the initial set of stakeholder meetings in
1994 was to obtain information about what should be included or
addressed in an ergonomics standard. This information was used
by the Team as the draft standard was developed. The subsequent
meetings in 1995 were to go back to stakeholders and discuss the
approach we developed to get their feedback. The feedback we
received will be useful in modifying the proposed rule to address
concerns raised or areas that need to be clarified. The
information does not relate to general duty clause enforcement
regarding ergonomics issues.

We look forward to discussing these issues further with you
during the course of the hearing on July 12, 1995.
Sincerely,

Adee

Joseph A. Dear
Assistant Secretary


33

possible based on consideration of the public record developed--
protecting employees in a manner that is effective and feasible.

However, OSHA is also pursuing non-regulatory approaches to

address the prevention of work-related musculoskeletal disorders.
As the President announced in his report, The New OSHA:
Reinventing Worker Safety and Health, the agency will be
developing a comprehensive strategy for activities related to
ergonomics. The plan is to schedule and conduct stakeholder
meetings to obtain input about a common sense strategy to the
issue that would include consultation, training and education,
labor and industry partnerships, and sensible
enforcement/litigation. ‘These meetings will take place during
the next few months. Subsequently, OSHA will be developing the
strategy by the end of this year.

Conclusion

We believe that OSHA has made a concerted effort to develop
an ergonomics proposal using many of the concepts that are now
being considered in the regulatory reform bills. The agency has
made a preliminary assessment of the costs and benefits of the
regulatory alternatives, and believes that the benefits--even
when conservatively estimated--significantly outweigh the costs.
An initial risk assessment has been conducted, and suggests that
workers may be at significant risk. These studies have used
currently accepted scientific methodology. Extensive efforts

have been made to obtain public input and professional review of

19


168

Rick TI

1. OSHA Citation to Masland Industries, Lewistown, PA; Sept. 22, 1989

2. Letter from Richard G. Sears, Vice President, Human Resources,
Masland Industries, Inc., to Senator Nancy Kassebaum, Chairman,
Senate Committee on Labor and Human Resources.

3.U. S. Bureau of tabor Statistics, Number of Occupational Injuries and

illnesses, I

‘ 3. U. S. Bureau of Labor Statistics, Number of Cccupational Injuries
iinesses | rk, by

indi lana, 1992. (seo page 2 for injuriesillness involving Toverexertion’TM or
“repetitive motion")



133

Mr. McINTosH. Thank you all for coming. Thank you for sitting
through Mr. Dear’s testimony and waiting patiently to be heard.

Why don’t we start the top of this one with Mr. Sarvadi. I would
ask you if you could summarize your statements. We will put the
entire written statement into the record. And we will proceed with
Mr. Sarvadi. Thank you.

Mr. Sarvadi, do you want to defer to Dr. Sandler.

Mr. SaRVADI. I would be happy to do that.

Mr. McInTosu. Oh, I’m sorry. Your name tags are switched.

Mr. SARVADI. We've got them reversed. I see. OK. It was hard
for me to read from the other side of the table.

Mr. McINTOosH. No, I don’t blame you. Thank you. I now know
who you are. Mr. Sarvadi, go ahead.

Mr. SaRvaADI. Actually, you confused me, because I thought How-
ard was going to precede me. But that’s OK, I'll go first.

STATEMENTS OF DAVID SARVADI, ESQ., KELLER AND HECK-
MAN; HOWARD M. SANDLER, M.D., PRESIDENT, SANDLER OC-
CUPATIONAL MEDICINE ASSOCIATES, INC.; RICK TREASTER,
PRESIDENT, LOCAL 2400, AMALGAMATED CLOTHING AND
TEXTILE WORKERS UNION; AND DEBORAH BERKOWITZ, DI-
RECTOR, OFFICE OF OCCUPATIONAL SAFETY AND HEALTH,
UNITED FOOD AND COMMERCIAL WORKERS INTER-
NATIONAL UNION

Mr. SaRvapi. I want to thank the committee for the opportunity
to participate in the hearing. I’m not here representing anybody,
but I do want it known that I do work with the Coalition on
Ergonomics and have done so for the last year and a half. So I’m
really here because I’m an interested party and have done work in
this field for about 25 years.

One of the interesting things about the conversation we heard
this morning was the discussion about the injury and illness statis-
tics and the need for a broad-based standard and the need for Gov-
ernment authority to require employers to do things that they
wouldn’t otherwise do in their own interest.

I thought it was really important to remind everybody in the
room that what we are talking about here is not getting employers
to do the right thing. We're talking about using the police power
of the Federal Government to force employers to do things that
they otherwise might not do because they don’t perceive that it’s
necessary to do these things.

While we can disagree or agree on what is necessary to be done,
asking people to do things because it’s the right thing to do may
not necessarily be what we want to legally require people to do. So
we just want to keep that in mind, that this is an issue of a legal
obligation versus what might be called a moral obligation.

e second thing I wanted to just mention briefly was the busi-
ness about the statistics. We have heard a lot of numbers today.

The one thing that I would like to put into the record and make
sure that it is emphasized is that the records we are talking about,
these Bureau of Labor Statistics numbers, include not only injuries
which are serious, things like lost workday cases, but it also in-
cludes a lot of cases where people simply complain at the end of
the day, “My hand hurts,” and they walk into the nurse’s office,


Ww

true crosscut of public and private views of where the agency
should focus its rulemaking efforts.

The New OSHA

There are three core principles guiding the agency's reform
efforts. Pirst, a choice between partnership and traditional
enforcement. OSHA has begun to refocus its enforcement and
compliance assistance efforts. We believe that our mission to
ve lives and prevent injuries can be enhanced by making a

better effort to identify good actors and treat them differently
from bad actors. For employers who have made safety and health a
priority, and who seek a productive partnership, we will offer
incentives, compliance assistance, training and education -- and
we will recognize their good efforts. But for those employers
who disregard their workers' safety and health -- and Mr.
Chairman, the sad fact is that some still do -- we will continue
to vigorously enforce the law.

The second principle: common sense requlation, OSHA is
changing its approach to regulations by eliminating or fixing
out-of-date and confusing standards, by identifying clear and
sensible priorities for new rules, and by employing "performance-
based" approaches where feasible. As part of its effort, OSHA
will rewrite many of its standards in plain language.

The third principle: results -- not red tape. Many
employers have complained that OSHA inspectors care less about
worker safety and health than they do about meeting perceived


61

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130

Because small business is the principal source of new

jobs and rent-seeking disadvantages small business, we sometimes

found ourselves at odds with big business in pursuing performance
standards in order to eliminate rent-seeking. Command and
control thus also leads to reduced competition that raises costs
for consumers just as it reduces opportunities for workers.
Finally, a related problem for workers is that command and
control freezes technology to the technology imposed by the rule,
precluding the adoption of less expensive, more innovative and
more worker-friendly technology in the future.

These factors are all at work here. The unions appear
to believe that they can create more union jobs with OSHA's
approach by forcing employers to slow down the workplace and add
more workers. What is more likely to happen, history repeatedly
shows, is that employers would respond by replacing the now less
productive worker with a machine, or moving the workplace itself
altogether to another country with no ergonomics regulation.
Needless to say, this truly disadvantages entry level, less
skilled workers in the short run and ultimately reduces unionized
jobs in the long run. on the question of innovation, moreover,
specifying exactly how to try to identify risk factors in the
workplace precludes the development of technologies that screen
workers in advance for susceptibility to, say, lower back
injuri

, that might have a far higher succ

rate in preventing
those injuries than a check list that does has little medical or
scientific foundation.


114

Now, I understand all those stories are wrong, but that is at
least what they are Saying.

Mr. Dear. The stories I've heard, too, often, when you check into
them, you know, it’s what somebody heard. You get into facts, and
there is more than one side to these, and typically they are more
complicated. You know, have we done something like cite an em-
ployer a couple hundred dollars for not signing an OSHA log, that

ad no injuries? I mean, that’s happened. I’m trying to stamp it
out. I don’t think it has happened recently, but, you know, that

appens.

Mr. SHADEGG. So it does happen?

Mr. Dear. But regulations are aimed at the margin. I mean,
there are firms, as you have indicated and as I have said, that are
way ahead of the Government. They decided, for enlightened
human resource policy reasons or very hard-headed economic rea-
sons, that serious attention to safety and health is in the interest
of the company and its owners and its workers and the commu-
nities they operate in.

But there are other firms, regrettably but undeniably, that have
an attitude that workers are expendable, that will try to reduce
standards, that will drive working conditions and standards down
for all firms, who will tempt others to have to take that low road.
I mean, what do you say if a firm has 4 out of every 10 workers
being injured—4 out of 10—and doesn’t do anything? Now, that
was a real case.

Mr. MCINTOSH. Would the gentleman yield for 1 second?

Mr. SHADEGG. Certainly.

Mr. McINTosH. Mr. Dear, you mentioned earlier something simi-
lar to that, which is that there are companies that treat workers
like debris, and let me tell you, that statement without any evi-
dence to back it up, is a slap in the face of a lot of employers who
work very hard to make sure that they have a safe work site for
their employees.

Could you produce a list of employers that you feel treat their
employees like debris?

Mr. Dear. I'll give you one right now.

Mr. MCINTOSH. Just one in the entire country?

Mr. Dear. Just one right now.

Mr. McInTosu. And can you give us more?

Mr. Dear. Sure. But one: Imperial Food Products in Hamlet, NC,
September 3, 1991, a fire broke out in that establishment. The
workers tried to escape; the doors were locked.

Mr. McINTosH. Had OSHA inspected that plant before that fire?

Mr. Dear. The State of North Carolina had never inspected that
facility. They had almost no capacity to do inspections on a random
basis because of the funding level of the program. Twenty-five
workers died.

Mr. McINTosu. And did U.S. OSHA do anything about this?

Mr. DEAR. We didn’t have—we took over the—exercise jurisdic-
tion.

Let me give you a recent one: Omega Plastics Co., operating in
New Jersey. They bought equipment from another firm in New
England and brought the machinery down. They left off all the ma-
chine guards, all of them, just off on the side. There were 10 ampu-


116

Mr. SHADEGG. I mean, if we’re looking for ways to save money.

Mr. Dear. Look, I think there’s a lot that can be done using
workers’ compensation to Ft employers to do things, and I have
some direct experience with Washington State and real successes,
and we have tried to operate some cooperative programs with in-
surers, nationally, to do that. We have great pilot projects under
way in New Jersey and Georgia right now that show that.

Very small firms are not experience rated under workers’ com-
pensation. There is no economic incentive for them to do that.
Health risks take so long, in terms of long latency diseases, that
the economic incentive is to find a way to avoid the cost, to exter-
nalize it, to hope the worker is not on your payroll when the cancer
is contracted. So there really is an absence of economic incentive,
in the pure market sense, for long latency health risks.

Mr. SHADEGG. Well, the asbestos industry and their—ultimately,
I guess, the bankruptey of that whole industry would suggest that
there was ultimately an economic penalty for ignoring the risk
there, wouldn’t it?

Mr. DEAR. Yes, and an enormous human cost of cancers which
were preventable if there had been some way to compensate the
workers and to make the companies accountable.

Mr. SHADEGG. Well, to stopping them from having occurred in
the first place.

Mr. Dear. Right.

Mr. SHADEGG. Let me switch to a different area. My understand-
ing is that you did not choose to use a traditional rulemaking proc-
ess with regard to ergonomics and that the rules that we have be-
fore us were not published in the Federal Register in the normal
fashion. Can you explain what process you did go through?

Mr. DEAR. We haven’t got that far yet. The agency, in August
1992, published an advance notice of proposed rulemaking. And I
hope you will note the month and year.

Mr. SHADEGG. August 1992.

Mr. Dear. 1992. We received over 300 comments as a result of
that advance notice. When I became Assistant Secretary in the fall
of 1993, I placed ergonomics on our agenda. It was published as
part of the Government's unified regulatory agenda. We had origi-
nally intended to publish a proposed rule in September 1994. By
the summer of 1994, I recognized that it was going to take more
time to produce a quality standard. We passed that deadline. We
have not established a new deadline since that point.

It is an unusual rulemaking, in the sense that we have done ev-
erything we can to open up the process, to meet with employers,
to meet with unions, with medical professionals, professional soci-
eties. I have visited workplaces in Michigan, Minnesota, Atlanta,
and elsewhere, to actually observe, firsthand, programs, to talk and
meet with, you know, real people, not folks here, to listen.

We conducted an extensive set of meetings in March this year,
showing Proposed regulatory text, the appendices, nonmandatory,
and the analysis, a risk assessment, in essence, of that standard.
We posted all of that information on the Internet, both through the
Department of Labor bulletin board, as well as a Worldwide Web
site, and have made it as available as we possibly could.


4

Mr. McInTosH. OSHA’s ergonomics rulemaking was identified
early in the 104th Congress as a likely candidate to be covered by
H.R. 450, the regulatory moratorium. Its 600-page draft, which we
have a copy of here, is hard to miss. When you have a regulation
that is that weighty and that thick, it is difficult for the American
people not to take notice.

After an OSHA official publicly indicated that it was her intent
to proceed with the regulation regardless of a moratorium, Con-
gress passed a “stop work order,” if you will, on this rulemaking,
as part of H.R. 1158 and H.R. 1944, the 1995 recision bills. That
stop work order is now under consideration in the Senate.

‘e have a quotation that triggered a lot of this over there on the
side. “If the legislation says the moratorium runs through Decem-
ber 31, our anticipation is that we would get the proposal out on
January 1, unless it says, ‘Do not work on ergonomics standards
or go to jail.’”

‘ow, our intent is to change the mindset of the agency. I was
pleased to see that Mr. Dear, last month, indicated that OSHA
would be abandoning the rulemaking, and many Members of Con-
gress now believe that ergonomics is a dead issue. But, as we see,

jongress needs to continue the comprehensive review of regula-
tions, and, in so doing, we are being told that ergonomics may, in
fact, continue to be an issue at the Department of Labor.

Our question today: Is OSHA finished with its ergonomics efforts
or not? As I am sure that the Assistant Secretary for OSHA well
knows, their objectives in looking at these rulemakings should be
twofold:

Its first objective should be to establish scientifically sound regu-
lations that conform to statutory requirements and do more good
than harm. As the physicians’ oath reads, OSHA should “first do
no harm.” That is just common sense. Its second objective should
be to issue regulations and conduct its enforcement and compliance
in a manner that generates public confidence in the agency.

When OSHA fails its first objective, it further erodes public con-
fidence. OSHA has, indeed, on the ergonomics rule, failed on both
accounts.

Before we hear from our witnesses this morning, I would like to
make it clear that I strongly believe in the need for safe work-
places. It is outrageous and grandstanding to say that our regu-
latory reform efforts are an attempt to gut worker safety or health.
Our purpose is to be smart about protecting worker safety and not
impose stupid or needless requirements or rules so costly that they
cause the loss of valuable jobs. If the net result of work in this area
is that more Americans are out of jobs, we have failed to truly pro-
tect worker safety.

What isn’t clear is whether one single, sweeping, one-size-fits-all
rulemaking is the key to ensuring safety, especially when grave

uestions still exist about the scientific basis for this regulation. If
the ergonomics rulemaking has truly been terminated, then we
must ensure that any ckdoor efforts to enforce unsound
ergonomics principles do not occur.

ere are over 6 million businesses established, under OSHA’s
jurisdiction, including 4.4 million small businesses. These busi-
nesses employ about 96 million workers, and, as my colleagues


93

operating under the auspices of Health Standards, which is
assigned to work on the development of a standard as well as
preparing the comprehensive stra‘

will remain intact to address thi
remaining intact is difficult to members are
assigned to many different parts of the Agency and simply devote
some of their time to the Team’s activities. The amount of time
that will be required from them will depend on the amount of work
that needs to be performed at various stages of the process.
other resources, such as money for consultants to assist the
Agency, should be limited at this point. The most significant
costs associated with developing a standard are generally
associated with collecting and analyzing the data related to
costs and benefits. The bulk of this work has already been
completed, and thus the expenditures on them have already been
made.

While it is not possible to identify the specific team costs
separately, OSHA estimates that an additional $2,887,000 will be
required to complete this project. This estimate includes the
cost of training and equipment for OSHA compliance officers and
the development of outreach materials to assist employers.

OBRA’s Use of stakeholder Meetings:
1) Please list any stakeholder meetings OSHA has held since

1980. Regarding ergonomics stakeholder meetings, please
include the following information in your answe:

a) The date and location of each meeting

b) A list of all parties invited to each meeting

c) A list of all parties who requested to attend each
meeting

qd) A-list of all attendees at each meeting, including
anyone from OSHA, the Department of Labor and the White
House

e) The factors used to determine which parties were
selected and which were rejected to be stakeholders

{) Who made the final determination of which parties were
selected and which were rejected as stakeholders

The use of "stakeholder" meetings was initiated by OSHA in the
current Administration. Attached you will find information
regarding the ergonomics stakeholder meetings convened by OSHA
since 1993. A separate list of stakeholder meetings relating to
other issues is also provided. A response listing all meetings
held by OSHA since 1980 will require an extensive search. We
would like the opportunity to discuss this request with your
staff in order to clarify it, and will provide a response as soon
as the information is obtained and can be compiled.



38

Mr. DEAR. You would have to think a little more. Now, to me,
a commonsense employer, when a worker is complaining about dif-
ficulty, isn’t going to go, “This is completely your imagination. Go
back to work.” They are going to go, “Tell me a little bit more about
this.” They are going to do this anyway. I mean, it’s just a very
sensible approach.

If you have problems, then you're going to have some obligation.
But if you have no problem—it’s very simple. It doesn’t take a com-
plicated analysis; it doesn’t take an expert. Any sensible person can
make the assessment.

Mr. McINTosH. Now, let’s move to that, whether it takes an ex-
pert or not.

The outline here, the decision logic to determine if you have to
address the problem, has 10 different steps. And each time there
was a loop—or at least several times in there, there was a loop that

ou had to do, a checklist. I was looking through the checklist ear-
ier. It was pretty extensive. You have different scoring points for
various things, like: Do you have 2 pounds of pressure when you
pinch an item? Do you have repetitive motions of different types?

That, to me, especially if people have a formal requirement in the
rulemaking for the type of checklist they need to go through, sets
up an enormous burden, with the potential, quite frankly, that
somebody who is in a disagreement with their employer could use
that as a mechanism either for retribution or to gain leverage in
whatever the other disagreement is about, by simply saying, “I’ve
got an ergonomics problem, and I’m going to report you to OSHA
if you don’t demonstrate to me that you have addressed this and
gone through the decision logic and the test.”

The potential there for a huge amount of burden and, ultimately,
employers looking for a solution, finding experts to come in and
certify their decisions, so they are not subject to liability, is some-
thing that I think needs to be taken into account in all of this ap-
proach.

The question I had was, do we really need to ask them to go
through that many times on the checklist? Every time there was
kind of a quick fix, and then there was a job improvement, and a
design control of new and changed jobs, each time, it looked like
they were then starting over again with this checklist.

Mr. Dear, You're starting at step two, and I’m talking about ste;
one. Step one is just a simple—do you have any of these signal ris!
factors? No? That’s it. Finished. You’re done. Yes? Then you look
at a checklist. So millions of employers aren’t going to get—they
are going to look at that first part and go, “I don’t have any obliga-
tion. Finished.”

If you have the problems, if you have the signal risk factors, then
you do the checklist. If your checklist score is below what we sug-
gested in the draft in March, below five, you’re done. So you get
a worker complaint, and it’s frivolous, it doesn’t relate to any real
hazard; no obligation.

I might point out that workers, if that’s the situation you de-
scribe , can complain anyway now. I mean, you know, there’s no
change.


158

Mr. MCINTOSH. We welcome all points of view.

Mr. TREASTER. OK. People from Washington I don’t think under-
stand how important it is to workers in Pennsylvania and around
the country. I know the People I work with in my plant and the
Masland Industries plant in Carlisle, which is 700 people, that they
wouldn’t want this.

I know that whoever they voted for, for Congress or Senator,
they would not have voted to do without the OSHA standards and
inspectors. They would have never voted to let companies violate
safety standards without a slap on the wrist.

Maybe Chairman Clinger or Congressmen Fox or Goodling think
that Pennsylvania workers don’t deserve safe plants, but I think
they are wrong. I think most Pennsylvania workers believe that
they deserve to have safe jobs,

lany of the injuries I talked about I think could have been set
up or could have been solved by a standard. There again, we've had
a lot of talk about it, and there’s a lot of, “What is the standard?”
So I can’t say, you know. You don’t understand what the standards
are. Mr. Dear didn’t know what the standards are. But I believe,
in my industry, we need a guideline to keep my people healthy.

So I respectfully ask the committee to look for ways to help com-
panies protect workers, keep our jobs, like OSHA did for my plant.
That’s what the Government is supposed to do, instead of letting
companies take advantage of workers who can’t defend themselves.

Thank you for this opportunity to speak, and I’ll try to answer
any questions the best I can at the appropriate time.

e prepared statement of Mr. Treaster follows:]


125

TESTIMONY
OF
Cc. BOYDEN GRAY
PARTNER, WILMER, CUTLER & PICKERING

AND
CHAIRMAN, CITIZENS FOR A SOUND BCQNOMY
BEFORE THE
HOUSE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT'S
SUBCOMMITTEE ON ECONOMIC GROWTH, NATURAL RESOURCES,
ID REGULATORY AFFAIRS
July 12, 1995

My name is Boyden Gray, and I am a partner at Wilmer,

cutler & Pickering and chairman of Citizens for a Sound Economy.

I served as President Bush's Counsel for twelve years, and in

that capacity also served as Counsel to The Presidential Task

Force on Regulatory Relief in the Reagan Administration, and co-

chairman of President Bush's Regulatory Reform Working Group

established in late 1991. I worked closely with Jim Miller, the

first Task Force executive director in 1981, to establish the
first strong White House regulatory oversight mechanism under
Executive Order 12291, which was followed in virtually all
critical respects by the current regulation executive order
signed by President Clinton.

I want to stri

s at the outset that I am not here as
ergonomics expert per se, but rather as a former White House

official charged with oversight responsibilities over a broad
range of regulatory matters. I will try to describe how this
former proposal would have been addressed by OMB and the Task
Force on Regulatory Relief (and the successor Competitiveness

Council) in the Reagan-Bush years in terms of the questions that

would have required adequate answers before the proposed rule

would have been cleared for publication in the Federal Register.


100

Ergo Stakeholder Meetings/Outreach, page 5

Town Meeting
March 20, 1995
Milwaukee, Wisconsin
Allen Bradley
Delphi Systems
Ford Motor Company

GE Medical Systems

Gigante & Associates
Harley-Davidson

Health Care Consultants
Imperial Eastman

Medical College of Wisconsin
MRA

Northwestern Mutual Life Insurance.
Oshkosh B’Gosh

Patrick Cudahy, Incorporated
PPG

Quad Graphics
Strauss Brothers Packing Company
Work Injury Care Center

Town Meeting
March 20, 1995
St. Paul, Minnesota

3M
American Express
Fingerhut Corporation

Honeyweli

1BM

Jacobs Consulting
Town Meeting
March 21, 1995
Atlanta, Georgia

D.L, Lee and Sons
Georgia Tech University
Goldkist

Russell Corporation
Seaboard Farms of Athens
‘Shaw Industries

Tyson Foods


41

about jobs that can’t be fixed? You can’t get the risk factor checklist
score below five, or whatever number is ultimately suggested, em-
ployment that takes what one person characterized as an “indus-
trial athlete” to perform.

Our standard—our proposal—our draft proposal is a performance
oriented approach. It tries to embrace the principles of continuous
improvement. It says we would expect an employer to keep trying,
but if they reached a point at which there could be no further re-
duction, then their obligation would cease.

One of the things I learned from my own participation in the
stakeholder meetings we conducted last year and this spring was
that question: How do I know when I’m done, some point of final-
ity? And I think that’s one of the areas that needs improvement in
the next version of a draft proposal or a proposal we might make
to help that out.

But the basic answer is, yeah, there are going to be cir-
cumstances in which the job is so demanding that it can’t be fixed,
and we have to recognize that and be able to communicate to em-
ployers that their obligation, their regulatory obligation, has been
met.

Now, you took that further. You said, well, what if some jobs are
automated, and could this standard have the ironic effect of, in
pursuit of protecting workers, decreasing their employment?

The overwhelming experience I’ve had, in visiting workplaces
and talking with managers, talking with workers who have ad-
dressed the problem of work-related musculoskeletal disorders, is,
when these problems are solved, workers’ comp expense goes down;
productivity and quality go up. Everybody is pleased with the re-
sult. There is a sense of pride and accomplishment of having tack-
led a tough problem. Ergonomics is about good design of work——

Mr. McINTOSH. Let me interrupt you for just a second, though.
If you've got an assembly line with 30 employees on it, and through
efficiency gains they switch that over to a mechanized system and
you've got 2 people working at it, there are probably 28 people who
aren’t happy about that result.

Now, it could be that the marketplace will drive you to that any-
way, but with this additional regulatory burden adding to that cost,
I don’t think you're going to have the 28 people who are no longer
employed—or maybe they have been able to find other employment
in the plants, maybe not—they are not going to be that happy.

Mr. Dear. Well, our existing requirement, under current yaw, is
that we assess economic and technical feasibility. That means we
really have to know if the requirement is going to impose the ne-
cessity to make huge a capital investment to automate an assembly

jine.

One of the misconceptions about ergonomics is that that’s what
you have to do: you have to make a huge investment to eliminate
the problem, when, in many instances, very simple, practical solu-
tions will do the trick: a table that moves up and down; a simple
tool that’s shaped a different way than one the worker is using. We
have to account, in our analysis of the rule, for economic and tech-
nical effects.

Let me say, in terms of the decision of corporations to make cap-
ital investments, those are very carefully considered decisions, and