OSHA - Beverly Settlement Requires Lifting Equipment To Avoid Ergonomic Injuries

Almost a year after Congress put the brakes on OSHA's ergonomics rulemaking effort, the Agency announced that it has settled a lawsuit with Beverly Enterprises, the nation's largest nursing home chain, over work-related ergonomic injuries. Chao v. Beverly Enter. Inc., OSHRC, Nos. 91-3344, 92-0238, 92-0189, 92-1257, 93-0724, settlement agreement signed 1/11/02. The settlement is a reminder that, while the ergonomics rulemaking has been pulled, the issue of repetitive-stress injuries is apparently here to stay. Under the terms of the settlement, Beverly agreed to purchase mechanical lifting equipment at all of its facilities nationwide and to train workers in the use of that equipment.

The settlement preempts an adjudicated decision as to whether lifting devices are a "feasible" means of abating a "recognized" hazard. Beverly agreed to withdraw its challenge to pending citations and OSHA will drop penalties it had proposed. The case began more than ten years ago when nursing assistants at five Pennsylvania nursing homes operated by Beverly Enterprises filed complaints with OSHA alleging that they had suffered back injuries from lifting and transferring patients. Beverly operates some 240 nursing homes nationwide.

At the conclusion of a fifteen-month investigation that began in 1991, OSHA issued citations against Beverly for ergonomics violations under the "general duty" clause of the Occupational Safety and Health Act. That clause, which is Section 5(1)(a) of the Act, states simply that an employer must provide employees with a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm. 29 U.S.C. §654(a)(1). The "general duty" clause is the Act's catch-all provision that provides OSHA with an enforcement option even in the absence of a specific standard. In a sense, it may pose more of a compliance challenge than the proposed ergonomics standard because it provides none of the specifics of a formal standard and permits the Agency to craft a case-specific standard. Congress intended that that the Act would be enforced largely through specific standards that would tell employers what they must do to achieve a safe and healthful workplace. The "general duty" clause was arguably intended to fill gaps that may occur, but to cover only hazardous conditions that are serious and obvious.

What is required to find a violation under the "general duty" clause? OSHA must show that the workplace hazard which is alleged is a "recognized hazard," that the injuries suffered were linked to the recognized hazard, and that it was feasible for the employer to abate the hazard. National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). In the Beverly case, OSHA argued that lifting and transferring patients exposed nursing assistants to the hazard of serious injury to the upper back and upper extremities. The case was heard by an administrative law judge in 1994. The judge threw out the citations because the Agency had failed to describe the hazard with sufficient clarity to give an employer fair notice. The judge also held that OSHA had failed to show that lifting and transferring patients was actually the cause of the injuries. It was clear that nursing homes had a very high incidence of back injuries, but the nursing assistants performed a number of tasks which could result in back injuries.

In 1995, the case went to the Occupational Safety and Health Review Commission where it languished until an October 2000 ruling. Beverly Enterprises, Inc., 19 OSHC (BNA) 1161 (Oct. 27, 2000). In rendering its decision, the Commission faulted OSHA for not defining the "hazard" with sufficient precision. Nevertheless, the Commission found that there was a substantial likelihood that nursing assistants would suffer back injuries because of their lifting activities. The Commission concluded that the back pain was a "serious physical harm" because it had a substantial effect on the ability of these employees to perform their normal activities and even disabled them for periods of time. The Commission agreed with the testimony of OSHA's nursing home experts who characterized the manual lifting of patients as "hazardous."

OSHA had, thus, met two of the three requirements for a "general duty" clause violation. OSHA had shown for the first time that regularly lifting patients who may weigh 200 pounds or more is a hazardous activity and that it was recognized as hazardous by the industry. The Commission also concluded that it was more likely than not that this lifting was causing the high number of back injuries in those engaged in that activity. As to the final element - whether it was feasible for the employer to abate the hazard - the Commission did not rule. The company had argued that no general policy could be adopted because the appropriate method could only be determined on a case-by-case basis. The fact that Beverly had actually tried a number of in-service programs, including a "Lift With Care" program, was used to reinforce the view that the Company recognized the hazard. The case was sent back for further evidence on the feasibility of abatement, including the costs of various approaches such as mechanical lifts and revised work practices, but the settlement precluded further proceedings.

In terms of OSHA's ability to find repetitive-stress injuries, the case is important in a number of respects. It is clear that, in the area of ergonomics, the review commission has adopted a very broad view of what rises to the level of "recognized hazard." Lifting patients is now in that category. Moreover, the decision takes a more liberal approach in finding the needed cause-and-effect relationship between an exposure and an injury. Industry had argued strongly that the ergonomics rule also had this basic defect. It is also notable that the preventive steps which Beverly had taken to institute certain in-service programs were seen as an admission that the hazard existed. The decision could well encourage OSHA to continue to use the "general duty" clause to cite health care facilities for ergonomics risks to employees in the absence of an ergonomics rule. If you have any questions about the Beverly settlement or OSHA ergonomics enforcement activity, please call your regular Crowell & Moring contact.